Bundara Kindergarten Association Incorporated

[2025] FWCA 2586

[2025] FWCA 2586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bundara Kindergarten Association Incorporated

(AG2025/2176)

BUNDARA KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER HUNT	BRISBANE, 5 AUGUST 2025

Application for approval of the Bundara Kindergarten Early Childhood Education Enterprise Agreement 2024

1. Bundara Kindergarten Association Incorporated (the Employer) has applied for approval of an enterprise agreement known as the Bundara Kindergarten Early Childhood Education Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 11 December 2024 and the Agreement was made on 23 June 2025. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Independent Education Union of Australia (IEU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

1. 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. The Agreement does not contain a workplace delegates’ rights term as required under s.205A of the Act for agreements made on or after 1 July 2024. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Children’s Services Award 2010 is attached to the Agreement and taken to be a term of it.

1. I have taken into consideration the material filed in the Commission. 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. For the purpose of s.186(3) of the Act, I note that the Agreement covers all of the employees of the Employer.

1. The IEU, being a bargaining representative for the Agreement, has given notice under s.183 it wants the Agreement to cover it. In accordance with s.201(2) of the Act 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 12 August 2025. The nominal expiry date of the Agreement is 5 August 2028.

Section 218A variation

1. In correspondence issued to the parties, I advised of a possible typographical error in clause 4.6(c) of the Agreement. Clause 4.6(c) provides a clerical/administration employee who is directed to work outside or in excess of the hours prescribed in clause 3.1.2(c) will be paid overtime according a table appearing below the clause. However, clause 3.1.2(c) refers to the ordinary hours of a part-time employee. I suggested to the parties that the correct reference may instead be to clause 4.1.2(a), which states that the ordinary hours of duty for an employee, other than a teacher, shall not exceed 38 hours per week, and shall be worked between 6 am and 6 pm on Monday to Friday.

1. I expressed my view to the parties that the reference to clause 3.1.2(c) in clause 4.6(c) of the Agreement was an obvious error, defect or irregularity within the meaning of s.218A of the Act. I sought the views of the parties as to whether the Commission should vary the Agreement to correct the error under s.218A. The Employer submitted that there had been a typographical error in clause 4.6(c), and the appropriate reference was indeed to clause 4.1.2(a). The Employer therefore submitted that the Commision should exercise its discretion under s.218A of the Act to correct the error by varying the Agreement.

1. I am satisfied that clause 4.6(c) contains an obvious typographical error within the meaning of s.218A(1) of the Act. The variation sought by the Employer would amend clause 4.6(c) of the Agreement, such that it would read, “A clericial/administration employee who is directed to work outside or in excess of the hours prescribed in clause 4.1.2(a)…”.
   

2. 
   I exercise my discretion to vary the Agreement under s.218A of the Act to correct the obvious typographical error in clause 4.6(c) of the Agreement. The variation sought will operate from the operative date of the Agreement, being 12 August 2025. The version of the Agreement published with this decision contains the original, erroneous clause; however, the clause is to be read in accordance with the variation set out in this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE529939  PR790342>

Annexure A – Undertakings