Ayr Community Kindergarten Association Inc

[2024] FWCA 2020

[2024] FWCA 2020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ayr Community Kindergarten Association Inc

(AG2024/1498)

AYR COMMUNITY KINDERGARTEN ASSOCIATION INC EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2023

Educational services
COMMISSIONER ALLISON	MELBOURNE, 4 JUNE 2024

Application for approval of the Ayr Community Kindergarten Association Inc Early Childhood Education Collective Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Ayr Community Kindergarten Association Inc Early Childhood Education Collective Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Ayr Community Kindergarten Association Inc (Applicant). The Independent Education Union of Australia (IEU) as a bargaining representative for the Agreement, supports approval of the Agreement. The Agreement is a single enterprise agreement.

1. The Applicant and the IEU provided submissions relating to the provision of the text of the Agreement and information explaining the terms of the Agreement to relevant employees, including casual employees. Noting this, I am satisfied that the Agreement has been genuinely agreed to by employees covered by the Agreement.

1. I observe that clause 5.8.2 of the Agreement relating to employer requests for employees to work on public holidays, does not specify that the employee may refuse the request if it is not reasonable, or if the refusal is reasonable, in accordance with s.114(3) of the Act. This provision may be inconsistent with the National Employment Standards (NES). However, noting clause 1.2.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. In relation to the better off over all test, the Applicant submitted that permanent employees are better off over all under the Agreement because, in addition to above award rates, permanent employees receive additional paid vacation leave under clause 5.3 of the Agreement. Vacation time is defined at clause 1.5.13 of the Agreement. I accept the Applicant’s submission and am satisfied that permanent employees are better off overall under the Agreement.  

1. In relation to casual employees, the Applicant has provided a written undertaking attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

1. Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The IEU 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 IEU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 June 2024. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

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Annexure A