Burles Consulting Pty Ltd

[2024] FWCA 2704

[2024] FWCA 2704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Burles Consulting Pty Ltd

(AG2024/2275)

DISCOVERY EARLY LEARNING CENTRES ENTERPRISE AGREEMENT 2024

Children’s services
COMMISSIONER ALLISON	MELBOURNE, 24 JULY 2024

Application for approval of the Discovery Early Learning Centres Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Discovery Early Learning Centres Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burles Consulting Pty Ltd. The Agreement is a single enterprise agreement.

1. The United Workers’ 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 United Workers’ Union.

1. The Agreement is silent on the definition of a shiftworker. The Employer provided an undertaking defining a shiftworker for the purposes of the National Employment Standards (NES). This undertaking is attached at Annexure A to this decision.

1. The following provisions may be inconsistent with the NES:

• Clause 32 relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with s.104 of the Act.
• Clause 11.8 relating to abandonment of employment, does not specify that an employee is entitled to their payment of notice of termination in accordance with ss.117-123 of the Act.
• The definition of “household member” in Clause 3 may be more restrictive than the NES.
• Clause 33, relating to notice requirements of personal/carer’s and compassionate leave, may be a more stringent notice requirement than permitted by the NES.

1. However, noting clause 6 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.

1. The Employer provided an undertaking that the minimum engagement for casual teachers will be in accordance with clause 17.5 of the Educational Services (Teachers) Award 2020.

1. The Agreement is silent on rates of pay for trainees. The Employer provided an undertaking outlining their rates of pay.

1. A copy of the undertakings are 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 terms of the agreement.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 July 2024. The nominal expiry date of the Agreement is 24 July 2027.

COMMISSIONER

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Annexure A