Australian Children’s Education and Care Quality Authority T/A ACECQA

[2022] FWCA 3422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Children’s Education and Care Quality Authority T/A ACECQA

(AG2022/3733)

ACECQA Enterprise Agreement 2022-2025

Commonwealth employment
DEPUTY PRESIDENT EASTON	SYDNEY, 5 OCTOBER 2022

Application for approval of the ACECQA Enterprise Agreement 2022-2025.

Australian Children’s Education and Care Quality Authority T/A ACECQA (the Employer) has made an application for the approval of the ACECQA Enterprise Agreement 2022-2025 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause E.1 – Annual Leave
- Clause E.7 – Compassionate Leave
- Clause E.14 – Unauthorised absences

Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The CPSU, the Community and Public Sector Union (CPSU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the CPSU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 October 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Australian Children’s Education and Care Quality Authority (ACECQA) applied to the Fair Work Commission for the approval of their Enterprise Agreement 2022-2025. ACECQA is a government body responsible for regulating and improving the quality of children's education and care across Australia. The proposed agreement, which was reached after negotiations between ACECQA and the relevant unions, sought to establish terms and conditions of employment for ACECQA's employees. The Commission was tasked with determining whether the proposed agreement met the requirements of the Fair Work Act 2009 and ensuring that it was in the best interests of the employees and the employer.

The primary legal issue before the Commission was whether the proposed agreement was in compliance with the Fair Work Act 2009, specifically whether it met the requirements for procedural fairness, good faith bargaining, and the protection of employees' rights. The Commission had to assess if the agreement provided fair and reasonable terms and conditions for the employees, including matters such as wages, hours of work, leave entitlements, and other employment-related issues. The Commission also considered the nature of ACECQA's role as a government agency and the implications this had on the agreement's provisions.

After reviewing the evidence and submissions from both parties, the Fair Work Commission found that the proposed agreement was generally fair and reasonable. The Commission determined that the agreement had been negotiated in good faith and met the procedural fairness requirements. The Commission considered the specific provisions of the agreement and found that they provided for fair and reasonable terms and conditions for employees, taking into account the unique nature of ACECQA's role and responsibilities. As such, the Commission approved the ACECQA Enterprise Agreement 2022-2025, deeming it to be in the best interests of both employees and the employer.

The final orders of the Fair Work Commission included the approval of the ACECQA Enterprise Agreement 2022-2025, which will now govern the terms and conditions of employment for ACECQA employees for the next four years. The Commission also ordered that the agreement be registered with the Fair Work Ombudsman, ensuring its legal enforceability. The approval of the agreement reflects the Commission's commitment to facilitating fair and reasonable outcomes for both employees and employers in the context of government agencies like ACECQA.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established