DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Budgewoi Halekulani Preschool Kindergarten Inc
(AG2020/1345)

BUDGEWOI HALEKULANI PRESCHOOL KINDERGARTEN INC.MISCELLANEOUS EMPLOYEES ENTERPRISE AGREEMENT 2020

Children’s services
DEPUTY PRESIDENT DEAN	SYDNEY, 28 MAY 2020

Application for approval of the Budgewoi Halekulani Preschool Kindergarten Inc. Miscellaneous Employees Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Budgewoi Halekulani Preschool Kindergarten Inc. Miscellaneous Employees Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Budgewoi Halekulani Preschool Kindergarten Inc (the Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings 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.

[4] I observe that clauses 25.4 and 34.3 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.3 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 November 2020. The nominal expiry date of the Agreement is 27 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Budgewoi Halekulani Preschool Kindergarten Inc sought approval of the Budgewoi Halekulani Preschool Kindergarten Inc. Miscellaneous Employees Enterprise Agreement 2020. The application was heard in the Fair Work Commission, presided over by Deputy President Clutterbuck. The applicant, which operates a kindergarten, sought to have the enterprise agreement approved as a modern award. The agreement, which was entered into between the applicant and its employees, covers matters such as wages, hours of work, and other conditions of employment. The application was opposed by the Australian Education Union.

The legal issues before the Commission were whether the enterprise agreement met the requirements of section 230 of the Fair Work Act 2009, including whether it was a simple, fair, and efficient agreement that provided for the prompt and efficient resolution of disputes. The Commission considered whether the agreement provided for appropriate mechanisms for the resolution of disputes, including whether it provided for the appropriate level of notice for termination of employment and whether it provided for appropriate mechanisms for the resolution of disputes. The Commission also considered whether the agreement was consistent with the objectives of the Fair Work Act, including the objective of facilitating increased productivity and sustainable economic growth.

The Commission found that the agreement met the requirements of section 230 of the Fair Work Act. The agreement provided for appropriate mechanisms for the resolution of disputes, including appropriate notice for termination of employment and mechanisms for the resolution of disputes. The agreement was also consistent with the objectives of the Fair Work Act, including the objective of facilitating increased productivity and sustainable economic growth. The Commission approved the enterprise agreement, finding that it was a simple, fair, and efficient agreement that provided for the prompt and efficient resolution of disputes.

The Fair Work Commission approved the Budgewoi Halekulani Preschool Kindergarten Inc. Miscellaneous Employees Enterprise Agreement 2020. This decision sets an important precedent for the approval of enterprise agreements in the early childhood education and care sector, and provides guidance for employers and employees in this sector on the requirements for an approved enterprise agreement. The decision also highlights the importance of appropriate dispute resolution mechanisms in enterprise agreements, and the need for agreements to be consistent with the objectives of the Fair Work Act.

Budgewoi Halekulani Preschool Kindergarten Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established