Burles Consulting Pty Ltd
[2025] FWC 2105
•18 JULY 2025
| [2025] FWC 2105 [Note: An appeal pursuant to s.604 (C2025/7686) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Burles Consulting Pty Ltd
(AG2025/1798)
THRIVE GROUP TASMANIA ENTERPRISE AGREEMENT 2025
| Children’s services | |
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 18 JULY 2025 |
Application for approval of the The Thrive Group Tasmania Enterprise Agreement 2025
Before the Commission is an application for the approval of an enterprise agreement known as the Thrive Group Tasmania Enterprise Agreement 2025 (Proposed Agreement). The Proposed Agreement was made on 5 June 2025 when a majority of employees employed by Thrive Group Tasmania Inc (Thrive) at the time who would be covered by the Proposed Agreement voted to approve it.
By application dated 10 June 2025, made under s 185 of the Fair Work Act 2009 (Cth) (Act), Thrive seeks the approval of the Proposed Agreement. The Proposed Agreement is a single enterprise agreement for which the United Workers’ Union (UWU) is a bargaining representative.
The UWU has raised an objection to the approval of the Agreement. The objection broadly concerns the Service Leader classification under the Agreement and the appropriate classification matching to the Children’s Services Award 2010 (Award). This decision determines the UWU’s objection.
Context
Thrive is a not-for-profit service that provides children’s education and care services in Tasmania. Its employees are presently covered by the Northern Children’s Network Inc (NCN) Enterprise Agreement 2013 (NCN Agreement).[1]
The Proposed Agreement will apply to employees of Thrive who are employed in positions within the classification definitions in Schedule A of the Proposed Agreement.[2] These classifications include Educators, Compliance and Support Officers, Early Childhood Teachers, Handyman/Maintenance/Cleaners and Gardeners and – relevantly – Service Leaders. The Proposed Agreement does not cover or apply to the list of classifications at clause 3.2 of the Proposed Agreement, which relevantly includes the Chief Executive Officer, the Director of Children’s Services, and the Early Years and School Aged Care (EYSAC) Manager.
The classification definition for the position of Service Leader is set out in Schedule A of the Proposed Agreement. It describes a Service Leader in the following way:
This is an employee who holds a Diploma in Education and Care or equivalent and is in the position of Service Leader. The Service Leader will be in charge of day-to-day running of an education and care service. The employee will lead a team of educators at a service to provide quality education and care. At this level employees will be responsible for ensuring the service runs according to the NQF and Thrive Policies as well as participating in the education and care of children attending the service. An employee appointed at this level will also undertake the same duties and perform the same tasks as a Level 3 employee.
The indicative duties of a Service Leader are as follows:
Co-ordinate and direct the activities of employees engaged in the implementation and evaluation of developmentally appropriate programs.
Contribute, through the EYSAC Manager, to the development of the service’s policies.
Co-ordinate centre or service operations including Occupational Health and Safety, program planning, staff training.
Responsible for the day-to-day management of the service for management and compliance with licensing and all statutory and quality assurance issues.
Generally supervise all employees within the service.
Be innovative and bring new ideas and challenges to educators.
Model appropriate interactions and behaviours to other educators.
Conduct annual performance reviews of the staff on your team.
Interview parents at time of enrolling.
Be actively aware of the services budget and spending, including training and travel.
Work in conjunction with the EYSACM for planning and preparing the service for future Assessment and Rating.
Promote the service to the wider community.
An employee in the role of Service Leader will be classified as Level 4 (Grades A to F) under the Proposed Agreement. The progression pathway for a Service Leader is described as follows:[3]
Progress through Level 4 in accordance with clause 17.4, or earlier if Thrive Group Tasmania considers the employee capable of performing the work at the next level or if the employee actually performs work at the next level. Grades E and F are dependent on the Service Leaders willingness and ability to act as an expert in one or more area of their day-to-day job and mentor and coach other leaders with the agreement and oversight of the EYSAC manager.
The minimum hourly rates of pay for a Service Leader under the Proposed Agreement as at July 2024 vary between $34.14 per hour (Grade A) and $37.29 per hour (Grade F).[4]
The Children’s Services Award 2010 (Award) covers employers throughout Australia in the children’s services and early childhood education industry and their employees in the classifications listed in Schedule B of the Award. It is not in dispute that it is the relevant award to be applied for the purposes of applying the better off overall test (BOOT).
The UWU’s position is that the correct Award comparator for the Service Leader classification for the purpose of applying the BOOT is the Level 6 Director classification, not the Level 5 Assistant Director classification under the Award that Thrive contends is applicable.
The UWU submits that if it is wrong about this, a further issue arises in respect of Service Leaders in relation to clause 19 Higher Duties of the Proposed Agreement. The UWU’s position is that a Service Leader who is required to undertake duties of a Director in circumstances where the Director is absent from the service cannot receive payment of a higher duties allowance under the Agreement because the Agreement does not contain a classification and rate of pay for a Director. It is contended that this means that Service Leaders are not better off overall under the Proposed Agreement.
The UWU relies upon the witness statement of Vicki O’Grady, who is employed by Thrive as a Service Leader at its Beaconsfield Early Learning Service, together with two National Quality Framework information sheets titled Responsible Person Requirements for Approved Providers and Nominated Supervisors. Thrive relies upon the witness statement of its Director of Children’s Services, Sebastian Tuttle. Each witness was required for cross examination at a hearing before the Commission.
The respective positions
In summary, the UWU makes the following submissions in support of its position that a Service Leader is appropriately matched to a Director under the Award:
The positions of Assistant Director (Level 5) and Director (Level 6) in the Award apply to a person who is “appointed” to that role but these are not positions that are required under the Education and Care Services National Law or Regulations and which must be “appointed” in the same way that a person must be designated as Educational Leader[5] or placed as the “person in day-to-day charge”[6] of a service.
The Director classification in the Award applies to a “director of a service,” with the pay point level determined by reference to the number of children the service is licenced for. The classification applies to a person whose primary role is to manage a service.
A Director is responsible for the overall management of the service. Where the Director is temporarily absent, an Assistant Director assumes this responsibility and is entitled to higher duties payments under the Award when they perform the Director role for two or more consecutive working days.
Under the Proposed Agreement, a Service Leader is required to assume the responsibility for day-to-day management of the service at all times, despite this notionally being the duty of the Director.
While the Proposed Agreement does not apply to a Director, the role of a Director in Thrive’s business model is a higher-level executive position which differs to the concept of a Director under the Award.
The evidence of Ms O’Grady demonstrates that Thrive’s Director of Children’s Services, Mr Sebastian Tuttle and the EYSAC Manager, Ms Angela Kinnersley have little involvement in the day-to-day management of the service at which Ms O’Grady is the Service Leader.[7]
Thrive operates a number of services across Tasmania and has centralised its business structures. This explains Ms O’Grady’s evidence that Mr Tuttle and Ms Kinnersley have some of the responsibilities of a Director.
On a proper construction of the Award, it is not necessary that Ms O’Grady carries out all of the indicative duties listed for a Director to be notionally classified at that position under the Award. She need only carry out the major and substantial part of those duties.[8]
In the NCN Agreement, being the current agreement applicable to Thrive and the relevant employees, the position of “Centre Leader” is described as equivalent to classification CBC Level 4C-7B. A characteristic of an employee at these levels is that they are described as the “Director of Centre” or “Centre Director.”[9] The rates of pay for CBC Level 5 Grade C, CBC Level 6 and CBC Level 7 are all stated to be comparable to Level 6 in the Award.
Ms O’Grady’s evidence is that she is responsible for managing the work of the Early Childhood Teachers who work at her service.[10] Ms O’Grady also has the statutory responsibility of Educational Leader and is appointed as a responsible person in day-to-day charge.[11] The rates of pay for Early Childhood Teachers under the Proposed Agreement exceed the rates of pay for Service Leaders which the UWU contends is an obvious disparity in the pay structure and tends against the most appropriate classification match for a Service Leader being Level 5 under the Award.
The modifications made to the Award’s Assistant Director descriptor for the purposes of describing a Service Leader in the Proposed Agreement fundamentally alter the position of Service Leader as one which is permanently required to carry out a major and substantial duty of a Director, being the day-to-day management of a service.
The UWU submits that should the Commission be against it, the evidence of Ms O’Grady demonstrates that neither Mr Tuttle nor Ms Kinnersley can be properly said to be the “director of a service” within the meaning of the Award because they are not responsible for the day-to-day management of Ms O’Grady’s service.[12] The UWU submits that if the Award applied, a person in the role of Service Leader would be entitled to payment for higher duties for any time exceeding two consecutive working days where they were carrying out the duties of Director. The UWU’s position is that having a permanent requirement on a Service Leader to be responsible for managing the service day-to-day when this is otherwise a temporary requirement under the Award, would meet the threshold for the payment of a higher duties payment under the Award.
Thrive contends that a Service Leader is correctly aligned to Level 5 of the Award. It says that the role is not equivalent to the position of Director under the Award because a Service Leader undertakes fundamentally different duties to those required by the Director under the Award due to the unique business structure that that a Service Leader operates within.
Thrive says that the evidence of its Director of Children’s Services, Mr Tuttle, differs substantially from the evidence of Ms O’Grady. In summary, it says that:
Thrive operates under a unique business model, which centralises most of the managerial and statutory duties in Thrive’s head office and Business Services Unit. These roles sit outside of the scope of the Proposed Agreement.
Service Leaders do not undertake overall management of the service, but rather lower-level oversight of employees and attendance to some managerial tasks, with ultimate approval residing with head office.
If the Service Leader position were to be reclassified to the equivalent of Director under the Award, it would have a substantial detrimental impact on Thrive’s business model.
Consideration
The issue I am required to determine is whether Service Leaders under the Proposed Agreement are appropriately aligned to a Level 5 Assistant Director under the Award or, as the UWU contends, they should be aligned to a Level 6 Director under the Award. This issue informs whether the Commission can be satisfied that Service Leaders would be better off overall under the Proposed Agreement.[13]
The parties agree that the Commission should conduct this assessment by applying the principal purpose test,[14] although the UWU accepts that the test is not a perfect analogue in a case such as this where the question is about the award classification for the purposes of conducting the BOOT. The Full Bench in Zheng[15] expressed some reservations about the use of the principal purpose test to determine whether a person falls within one of the classifications of the modern awards relevant to that matter, given the highly generic manner of the award classification, including the lack of specificity as to the relevant job functions at each level. Further, the recent Full Bench decision in Aldi[16] upheld a first instance agreement approval decision in which classification matching was conducted for the purposes of the BOOT absent reliance upon the principal purpose test.[17]
Regardless, UWU submits that the test still has utility in assisting in the assessment of what is the most appropriate classification matching for the purposes of the BOOT and I note that the Award classification descriptors contain some specificity as to the relevant job functions. The test requires an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work for the purpose of ascertaining the principal purpose for which the employee is employed. This is a question of fact. Once that is done, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor.[18]
The UWU accepts that the Commission does not have before it evidence about the employment of all persons employed in the position of Service Leader. The work performed by Ms O’Grady is set out in her witness statement, which attaches a position description for the role of Centre Leader, to which Ms O’Grady was appointed in 2023.[19] Ms O’Grady describes herself as a Service Leader who is required to manage the service on a day-to-day basis, this being a “major part” of her work.
It is not in dispute that Ms O’Grady manages the staff and rostering including by conducting performance reviews of the educators at the service, handling interviews with families prior to enrolment and ensuring the correct ratios of staff. Ms O’Grady says she also ensures a responsible person is appointed for times she is not at work (noting that she is the appointed “responsible person in charge” of the service).[20] In addition, the position description sets out duties associated with administrative tasks and other duties such as ensuring child information is up to date and stored in accordance with policies and ensuring staff follow Thrive’s policies generally.[21] Ms O’Grady was cross-examined in relation to the duties she performs as a Service Leader. Having regard to Ms O’Grady’s evidence and in addition to the above matters which I accept, I find as follows:
Ms O’Grady is in charge of the day-to-day running of the service in Beaconsfield in accordance with Thrive’s policies, as well as participating in the education and care of children at the service.
Ms O’Grady reports to the EYSAC Manager, Ms Kinnersley and undertakes an annual performance review with Ms Kinnersley.
While Ms O’Grady does not make decisions about who is employed in the service, she gathers information such as resumes for provision to head office.
If Ms O’Grady observes inappropriate behaviour at the workplace (for instance, an educator’s non-compliance with the sun safe policy) she will address it through workplace level discussions, but any repeated non-compliance or disciplinary action required is referred to Mr Tuttle or Ms Kinnersley to manage.
Ms O’Grady has not dealt with termination of employment matters; these matters, as well as promotions are Ms Kinnsersley’s responsibility.
Payroll concerns are referred to Mr Tuttle or Ms Kinnersley.
Ms O’Grady ensures that staff attend mandatory training, but such training modules are prepared by the relevant training provider. The steps Ms O’Grady takes to arrange for that training to be provided involves gathering educator’s emails and compiling a spreadsheet to be sent to the training provider for the structure of the training.
Ms O’Grady ensures compliance with the policies and procedures of the service but does not draft the policies; such drafting responsibility rests with head office.
Ms O’Grady is aware of the services budget but is not responsible for the service’s finances or the paying of accounts.
Ms O’Grady prepares the service for review by Ms Kinnersley prior to visits and audits for quality assurance assessment purposes. Ms O’Grady’s preparation steps include making sure the relevant documentation is available and ensuring the planning is up to date.
While Ms O’Grady will ensure that the service has things “in place” and “ready to go,” she accepts that Mr Tuttle and Ms Kinnersley are the nominated supervisors of the service for regulatory purposes and are therefore ultimately responsible for ensuring compliance with the regulations.
In relation to families, Ms O’Grady meets and greets them and provides general assistance but accepts that head office finalises and handles all the enrolments (including issuing compliance agreements). Ms O’Grady refers families to head office for IT related and other issues that she cannot assist with.
Ms Kinnersley and Mr Tuttle have overall management of the service in their roles and Ms O’Grady accepted this.
In the circumstances of staff absence, Ms O’Grady might change her own hours to fill in or arrange for split shifts to be performed, but if these matters did not resolve the issue, she would seek permission from head office to contact families about care availability.
Mr Tuttle also gave evidence about the role of a Service Leader. Mr Tuttle said that since at least 2012, Thrive has operated under a centralised business model which means that the most senior person at Thrive centres is the Service Leader. Mr Tuttle said that the Service Leader holds no legal responsibilities beyond those of all staff members working at the service. The Service Leader is the point of contact for families and staff at the service and acts as the “eyes and ears” at the service on a day-to-day basis. Mr Tuttle said that as part of Thrive’s centralised model, Service Leaders concentrate on the children and families and day-to-day oversight of staff, while all other duties are taken on by head office.[22] Mr Tuttle was cross-examined in relation to the duties of a Service Leader. Having regard to his evidence and in addition to the above matters which I accept, I further find as follows:
Mr Tuttle is the nominated supervisor for all of Thrive’s services, and Ms Kinnersley is also the nominated supervisor for Thrive’s services with the exception of family day care.
Mr Tuttle and Ms Kinnersley are not physically present at each service on a daily basis but perform work from Thrive’s head office.
As Mr Tuttle and Ms Kinnersley are not present at a service on a day-to-day basis, the Service Leader is the responsible person in day-to-day charge pursuant to the National Law, when they are working.
Having regard to the evidence before the Commission and my findings, I am satisfied that the Service Leader has the responsibility for the day-to-day running of education and care service at which they work. In addition, the Service Leader is involved in the education and care of children attending the service. The role provides leadership and supervision to the educators within the service, co-ordinates relevant training and conducts annual performance reviews. The Service Leader will act as the first point of contact for families, including by conducting interviews at enrolment. The Service Leader will take preparatory steps to ensure the service will meet its compliance regulations and does so under the supervision of the nominated supervisors of the service. To the extent it is necessary to so conclude, I consider these matters form the principal purpose of the Service Leader role.
I am satisfied that the Service Leader holds an important role in Thrive’s business. The evidence discloses that the nominated supervisors at Thrive, Mr Tuttle and Ms Kinnersley, rely upon the Service Leader to be their “eyes and ears” at the service on a daily basis. The importance of ensuring the safety of children while in care cannot be understated. Ensuring there is adequate supervision and the correct ratios of staff to children are matters of primary responsibility for the Service Leader.
The UWU submits that Service Leaders are Level 6 Directors under the Award including because the structure of Thrive’s operations demonstrates that the Service Leader has a high degree of responsibility to ensure the proper management of the service. This is in circumstances where Mr Tuttle and Ms Kinnersley do not work on site, nor do they regularly attend Ms O’Grady’s service to carry out their work. The UWU says that delegating the effective management of the service to the Service Leader sets the role apart from a Level 5 employee under the Award, who only has these functions on a temporary basis.
I accept that under the National Quality Framework that comprises the Education and Care Services National Law and Regulations, the service is legally required to have a responsible person present at the service at all times. This can be either the approved provider, the nominated supervisor or a person placed in day-to-day-charge of the service. While the Service Leader is placed in day-to-day charge of the service under Thrive’s business model, I do not accept that a Service Leader is aligned to a Level 6 Director under the Award, having regard to the indicative duties of a Level 6 employee at B.1.10(a) of the Award.
The assessment of the Service Leader classification must be undertaken by reference to the management structure in place at Thrive. The Service Leader does not hold overall management responsibility for the service as contemplated by the Award Level 6. Rather, as Ms O’Grady accepts, Mr Tuttle and Ms Kinnersley hold overall responsibility in their capacity as nominated supervisors. The fact that the Service Leader has the day-to-day responsibility from a regulatory perspective does not alter this conclusion. As the Responsible Person Requirements for Approved Providers demonstrates, being in day-to-day charge of a service does not place additional legal responsibilities on a person under the National Law.[23]
The evidence of Ms O’Grady demonstrates that she supervises or acts as a sounding board for staff on programming at the service as a consequence of her dual role as an Educational Leader.[24] I am satisfied that these are additional duties that sit outside the principal purpose and indicative duties of the Service Leader.
The Service Leader does not recruit staff. Ms O’Grady’s evidence demonstrates that a Service Leader may collate relevant information (such as resumes) for provision to head office. While this may be accompanied by a recommendation for engagement, a Service Leader does not conduct interviews or undertake employment related checks to support the recruitment of an employee.
The Service Leader does not maintain accounts. Further, while the Service Leader will perform administrative tasks such as returning phone calls or emails, this does not lead to a conclusion that the Service Leader handles “all administrative matters for the service” as contemplated by the Award Level 6. I accept Ms O’Grady’s evidence that at Thrive “a lot of admin and accounting is done for us by head office.”[25]
While the Service Leader ensures that the service adheres to correct staff ratios and that an alternative responsible person in charge is available in their absence, I am comfortably satisfied that the Service Leader’s role does not entail ensuring that the service adheres to regulations or statutory requirements; these obligations rest with Mr Tuttle and Ms Kinnersley and Ms O’Grady accepted this as so.
I do not consider that the task of ensuring the service meets quality assurance requirements rests with the Service Leader. As Ms O’Grady accepts, she will prepare the service for quality assessment reviews including by ensuring the documentation and planning is up to date and available. These steps are no doubt important but are subject to the review and oversight of Ms Kinnersley who bears responsibility for this task.
The Service Leader is the first point of contact for families at the service and thereby liaises with families. I also accept Ms O’Grady’s evidence that she will engage with certain outside agencies having regard to the onsite services that are available in her specific location. However, I am not persuaded that this is representative of Service Leaders more broadly. I accept Mr Tuttle’s evidence that Thrive’s head office is responsible for engaging with external agencies such as the Department of Education, banks, software providers and other third-party contractors.
A Service Leader is not responsible for formulating and evaluating annual budgets, as acknowledged by Ms O’Grady.
A Service Leader does not liaise with management committees. In the context of Thrive’s structure, it is Mr Tuttle who reports to the Board.
A Service Leader provides professional leadership, including through conducting staff appraisals. But when concerns are raised about an employee’s performance or issues arise beyond general appraisals, they are dealt with by Mr Tuttle and Ms Kinnersley. I accept Mr Tuttle’s evidence that he and Ms Kinnersley are responsible for staff professional development. Insofar as it concerns relevant policies such as safe sleep, food safety and child protection training, I accept Ms O’Grady’s evidence that she monitors whether such training is up to date, but it is Ms Kinnersley who is ultimately responsible for overseeing this training.
A Service Leader does not develop policies and procedures for the service. Ms O’Grady monitors and co-ordinates staff compliance with policies formulated for the service by head office. As Ms O’Grady said, “my work is more about applying the policies and making sure that other staff are familiar with them and are also applying them.”[26]
Having regard to the above matters and the conclusions reached, I am satisfied that the Service Leader is not aligned to a Level 6 Director under the Award. While a Service Leader is the most senior person at the service on a day-to-day basis, they do not hold the level of responsibility of a Level 6 employee. I do not accept the UWU’s submission that Ms O’Grady performs a major and substantial part of the duties of a Level 6 employee. The evidence, including Ms O’Grady’s own concessions, runs contrary to this submission.
In my view, the Service Leaders are correctly matched to a Level 5 Assistant Director under the Award. I reach this conclusion having regard to my factual findings and the principal purpose of the Service Leader role, considered against the indicative duties of a Level 5. These indicative duties include co-ordinating and directing the activities of employees, contributing – through the Director – to the development of policies, co-ordinating service operations, program planning and staff training and general supervision of employees in the service. I consider these are apt to describe the duties of a Service Leader on the evidence before the Commission.
The UWU submits that a Level 5 employee under the Award is responsible for the day-to-day management of the service only in the temporary absence of the Director. It is contended that because a Service Leader at Thrive is placed in day-to-day charge of the service, they are not Level 5 employees. However, this submission needs to be assessed against Thrive’s operational model. While a Director with Thrive is centrally located, I do not accept that their location of work elevates a Service Leader to a Level 6 under the Award having regard to my factual findings and an analysis of the classification criteria.
I have considered the UWU’s contention that the NCN Agreement describes the now-redundant title of “Centre Leader” as equivalent to the “Director of Centre” or “Centre Director.” The NCN Agreement commenced operation in May 2013 and Mr Tuttle’s evidence is that Thrive has operated under its centralised business model since 2012. There is no evidence before the Commission demonstrating the duties performed by a “Centre Leader” in or about May 2013. Even if some rates of pay for a “Centre Leader” under that instrument are stated to be comparable to a Level 6 in the Award, that does not mean that the conclusion is correct, or that it reflects the duties of a Service Leader in Thrive’s operations 12 years later. I have also considered the UWU’s contention that the rates of pay for Early Childhood Teachers under the Proposed Agreement exceed the rates of pay for Service Leaders. While the framework within which Service Leaders work is an appropriate consideration, I am not persuaded that the rates of pay under the Proposed Agreement for Early Childhood Teachers tell against my finding that the most appropriate classification matching for a Service Leader under the Award is a Level 5, having regard to a Service Leader’s principal purpose and the classification criteria.
I therefore conclude that Thrive’s classification matching in respect of Service Leaders is correct. The rates of pay under the Proposed Agreement for a Service Leader exceed the Level 5 rates under the Award.
Higher duties
The UWU’s higher duties claim relies upon clause 18.1 Higher duties of the Award, read together with sub-clause (b) which provides as follows:
18.1 An employee engaged in duties carrying a higher rate than their ordinary classification for two or more consecutive hours within any shift or day will be paid for the time so worked at the higher rate provided that:
…
(b) an employee engaged as a Children’s Services Employee Level 5 (Assistant Director) who is required to undertake the duties of a Director by reason of the Director’s absence will not be entitled to payment under this clause unless the Director’s absence exceeds two complete consecutive working days;…
The claim requires the Commission to consider whether a Service Leader covered by the Award would be entitled to a higher duties payment under clause 18.1(b). For the reasons that follow, I am not satisfied that such an entitlement would arise. It remains the case that even if the Award applied to a Service Leader’s employment, the entitlement to a higher duties payment under clause 18.1(b) must be assessed having regard to Thrive’s operational model. I do not accept that under Thrive’s structure, a Service Leader under the Award would be required to undertake the duties of a Director by reason of the Director’s absence for the following reasons:
I do not accept the UWU’s submission that holding a regulatory responsibility for managing the service day-to-day meets the threshold for the payment of higher duties under the Award. Clause 18.1(b) of the Award requires a Level 5 employee to undertake the duties of a Director (as aside from being the person in day-to-day charge). As the analysis in this decision demonstrates, I do not accept that a Level 5 employee undertakes the major and substantial duties of a Level 6 Director.
Further, for clause 18.1(b) of the Award to be engaged, the duties of a Director must be undertaken by reason of the Director’s absence. The evidence before the Commission is that under Thrive’s operational model, if Mr Tuttle is absent, his duties are performed by Ms Kinnersley. They are not performed by a Service Leader. This tells against a scenario where the Director’s duties would be undertaken by the Service Leader by reason of the Director’s absence. I note that Thrive does not employ “Assistant Directors” as that classification is used under the Award.[27]
I do not accept the UWU’s submission that it is “clear” from Ms O’Grady’s evidence that Mr Tuttle cannot properly be said to be the Director of the service within the meaning of the Award. I consider the contrary proposition to be available on the evidence. Ms O’Grady’s oral evidence demonstrated the extent to which she refers matters concerning the overall management and administration of the service to Mr Tuttle (and Ms Kinnersley). The description of Mr Tuttle as an “executive member” on Thrive’s website is insufficient to conclude that he does not meet the requirements of a Level 6 Director under the Award when considered by reference to the duties he performs in that role.[28] In any event, it is to be noted that Directors are excluded from the Proposed Agreement by reason of clause 3.2 and I do not consider it necessary to take this analysis further in the determination of the UWU’s objection.
It follows that in considering whether the Proposed Agreement passes the BOOT, I am not satisfied for the purposes of s 193A(6) of the Act that the performance, by a Service Leader, of the duties of a Director by reason of the Director’s absence is reasonably foreseeable having regard to the nature of Thrive’s enterprise. Accordingly, the UWU’s concern that clause 19 Higher duties of the Proposed Agreement precludes a Service Leader from a higher duties payment does not give rise to a BOOT concern.
Other matters
In response to preliminary concerns raised with the parties by the Commission following a review of the Proposed Agreement, Thrive proffered proposed undertakings. Chambers will correspond with the parties about these undertakings and the UWU will be given a period of two business days to provide responsive views.
DEPUTY PRESIDENT
[1] [2013] FWCA 3199; AE401370
[2] Agreement, clause 3.1
[3] Agreement, Schedule A
[4] Agreement, Schedule B
[5] Education and Care Services National Regulations, s 118
[6] Ibid, s 117A
[7] Exhibit 1 at [18]-[25]
[8] Hempel (Wattyl) Australia Pty Ltd v United Workers Union [2024] FCAFC 98 at [141] to [147]
[9] NCN Agreement, p 48 to 58
[10] Exhibit 1 at [16]
[11] Ibid at [9]
[12] Exhibit 1 at [18]-[25]
[13] Fair Work Act 2009 (Cth), ss 186(2), 193(1), 193(6), 193A
[14] Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387 at [9]
[15] Zheng v Poten & Partners (Australia) Pty Ltd[2021] FWCFB 3478, 307 IR 339
[16] Appeal by Shop, Distributive and Allied Employees Association (006N) v Aldi Foods Pty Limited As General Partner Of Aldi Stores (A Limited Partnership) Trading AS Aldi Stores, Clint Peddersen-Curtis[2025] FWCFB 143
[17] Aldi Foods Pty Ltd [2024 FWCA 3774
[18] Zheng v Poten & Partners (Australia) Pty Ltd[2021] FWCFB 3478, 307 IR 339 at [47]
[19] Exhibit 1, VOG-1
[20] Exhibit 1 at [8]-[11]
[21] Exhibit 1, VOG-1
[22] Exhibit 4 at [11]-[13]
[23] Exhibit 2, p.3
[24] Exhibit 1 at [41]
[25] Exhibit 1 at [61]
[26] Exhibit 1 at [58]
[27] Exhibit 4 at [10]
[28] Exhibit 4 at [5]
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