Burleigh Heads Kindergarten & Preschool Assoc Inc

[2022] FWCA 4091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Burleigh Heads Kindergarten & Preschool Assoc Inc

(AG2022/4603)

Burleigh Heads Community Kindergarten Enterprise Agreement 2022

Educational services
COMMISSIONER SPENCER	BRISBANE, 22 NOVEMBER 2022

Application for approval of the Burleigh Heads Community Kindergarten Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Burleigh Heads Community Kindergarten Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burleigh Heads Kindergarten & Preschool Assoc Inc (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

The Independent Education Union being a bargaining representative for the Agreement, 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 organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2022. The nominal expiry date of the Agreement is 31 October 2025.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Burleigh Heads Kindergarten & Preschool Association Inc, sought approval for the Burleigh Heads Community Kindergarten Enterprise Agreement 2022, which was a proposed industrial instrument under the Fair Work Act 2009. The application was made to the Fair Work Commission, a tribunal with specific jurisdiction over matters involving workplace relations and employment. The primary dispute revolved around whether the proposed agreement met the necessary legal standards for approval, including the requirement that it not have an adverse effect on the employees it was intended to cover.

The central legal issues before the Commission were whether the agreement was sufficiently detailed to be considered "modern" under the Act and whether it complied with the various statutory obligations, including those related to minimum entitlements, dispute resolution, and procedural fairness. Additionally, the Commission had to consider whether the agreement would have an adverse effect on the employees, as required by section 234 of the Act.

The Fair Work Commission found that the proposed agreement was sufficiently detailed to meet the criteria of a modern award, as it covered essential terms and conditions of employment. The Commission noted that while the agreement had some minor deficiencies, these did not significantly impact its overall compliance with the Act. The Commission further held that the agreement did not have an adverse effect on the employees, as it provided for fair and reasonable terms that aligned with the statutory minimum entitlements. Consequently, the Commission approved the Burleigh Heads Community Kindergarten Enterprise Agreement 2022, ensuring that it would serve as a valid industrial instrument for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established