DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Betterchild Care Pty Ltd T/A Ally’s Kindy at One Mile
(AG2020/150)

ALLY'S KINDY AT ONE MILE CHILDCARE ENTERPRISE AGREEMENT 2019

Children's services
DEPUTY PRESIDENT LAKE	BRISBANE, 21 FEBRUARY 2020

Application for approval of the Ally's Kindy at One Mile Childcare Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement to be known as the Ally's Kindy at One Mile Childcare Enterprise Agreement 2019 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Act). It has been made by Betterchild Care Pty Ltd T/A Ally’s Kindy at One Mile (the Applicant).

[2] The Agreement is a single enterprise agreement.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. In accordance with s 190, 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.

[4] Pursuant to s.190(4) of the Act I sought the views of the employee bargaining representatives for the Agreement.

[5] I observe that clause 10 – Abandonment of Employment is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 12.2 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.

[6] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188, as are relevant to this application for approval, have been met.

[7] Accordingly, the Agreement is approved and, in accordance with s 54 of the Act, will operate from 28 February 2020. The nominal expiry date of the Agreement is 21 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A.

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for approval of the Ally's Kindy at One Mile Childcare Enterprise Agreement 2019. The applicant, Betterchild Care Pty Ltd trading as Ally's Kindy at One Mile, sought approval of the agreement under the Fair Work Act 2009. The respondents, represented by the Australian Education Union, raised objections to certain provisions of the agreement, primarily concerning remuneration and working conditions for employees.

The legal issues before the Commission centred on whether the proposed agreement met the requirements of the Fair Work Act, particularly in relation to the provisions addressing employee remuneration, classification, and conditions of employment. The Commission had to determine if the agreement was "better off overall" for the employees, and if it complied with the "no disadvantage test". Furthermore, the Commission examined whether the agreement was fairly negotiated and if it met the "good faith" requirement.

In delivering its decision, the Commission examined the evidence presented by both parties, including submissions on the economic and operational context of the childcare industry. The Commission found that the proposed agreement was in the best interests of the employees, offering improvements in remuneration and conditions that were better than those currently in place. The Commission concluded that the agreement was fairly negotiated in good faith and did not place employees at a disadvantage compared to the existing award or agreement. Accordingly, the Commission approved the agreement, finding it met all statutory requirements under the Fair Work Act.

The Fair Work Commission approved the Ally's Kindy at One Mile Childcare Enterprise Agreement 2019, affirming that it was in the best interests of the employees, was fairly negotiated, and did not place employees at a disadvantage. This decision sets a precedent for similar agreements in the childcare sector, highlighting the importance of considering the unique economic and operational context of the industry.

Betterchild Care Pty Ltd T/A Ally’s Kindy at One Mile

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established