Baringa Early Learning Centre Trading AS Baringa Childcare Centre Incorporated

[2025] FWCA 2112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Enterprise agreement

Baringa Early Learning Centre Trading AS Baringa Childcare Centre Incorporated

(AG2025/1501)

BARINGA CHILD CARE CENTRE INCORPORATED ENTERPRISE AGREEMENT 2021

Children’s services
COMMISSIONER P RYAN	SYDNEY, 27 JUNE 2025

Application for variation of the Baringa Child Care Centre Incorporated Enterprise Agreement 2021

Baringa Child Care Centre Incorporated (Applicant) has made an application for approval of a variation of the Baringa Child Care Centre Incorporated Enterprise Agreement 2021 (Agreement) pursuant to s.210 of the Fair Work Act 2009 (FW Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

Section 212 Undertakings

The Applicant provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Sections 211 and 212

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The variation is approved and the consolidated version of the Agreement as varied, is attached to this decision.

Operative Date

In accordance with s.216 of the Act, the variation operates from 27 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Annexure B

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Baringa Early Learning Centre, trading as Baringa Childcare Centre Incorporated, and the employees represented by the Australian Education Union. The applicants sought a variation of the Baringa Child Care Centre Incorporated Enterprise Agreement 2021. The legal issues before the court focused on whether the proposed changes to the enterprise agreement were procedurally and substantively fair, and whether the changes met the requirements set forth in the Fair Work Act 2009.

The applicants argued that the changes were necessary due to significant changes in the business environment, particularly the effects of the COVID-19 pandemic, which had resulted in financial strain on the centre. They sought to alter the terms and conditions of employment to better align with the centre's financial realities. The respondents, represented by the Australian Education Union, opposed the changes, asserting that they would detrimentally impact the employees' terms and conditions of employment without providing commensurate benefits. The court had to determine whether the applicants had demonstrated a genuine need for the changes and whether the changes were fair and reasonable.

The Commission examined the evidence and submissions from both parties, considering the impact of the COVID-19 pandemic on the childcare sector and the financial viability of the Baringa Early Learning Centre. It assessed the fairness of the proposed changes in light of the criteria set out in the Fair Work Act 2009, focusing on the procedural fairness of the bargaining process and the substantive fairness of the changes. Ultimately, the Commission found that the applicants had not sufficiently demonstrated that the changes were necessary or that they were fair and reasonable. Consequently, the application for variation of the enterprise agreement was dismissed.

The Fair Work Commission ordered that the application for variation of the Baringa Child Care Centre Incorporated Enterprise Agreement 2021 be dismissed. The existing agreement remained in effect, and the terms and conditions of employment for the employees were not altered by the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established