Burpengary Kindergarten Association Inc T/A C&K Kindergarten Burpengary

[2021] FWCA 1770

[2021] FWCA 1770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Burpengary Kindergarten Association Inc T/A C&K Kindergarten Burpengary
(AG2021/190)

BURPENGARY KINDERGARTEN EARLY CHILDHOOD ENTERPRISE AGREEMENT 2020

Children's services
COMMISSIONER BOOTH	BRISBANE, 31 MARCH 2021

Application for approval of the Burpengary Kindergarten Early Childhood Enterprise Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by the Burpengary Kindergarten Association Inc T/A C&K Kindergarten Burpengary (the Applicant) for approval of the Burpengary Kindergarten Early Childhood Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement.

[2] Mr Paul Giles, Assistant Secretary/Treasurer of the Independent Education Union – Queensland and Northern Territory Branch (IEU – QNT), filed a Form F18 in this matter, advising that the IEU - QNT supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] Correspondence was sent to the Applicant on 26 February 2021, raising certain concerns in relation to the Agreement and seeking responses and undertakings from the Applicant.

[4] The Applicant filed submissions on 1 March 2021. The Applicant sought further clarification on 3 March 2021 with regards to the undertaking sought. Following further correspondence, the Applicant provided an undertaking. The IEU-QNT was provided with copies of the response and proposed undertakings. Mr Spriggs, Senior Industrial Officer of the IEU-QNT, sent correspondence raising concerns regarding the Notice of Employee Representation Rights. The Applicant provided a response to these concerns. I consider that the matters raised are minor procedural or technical errors and in these circumstances, it is appropriate to exercise my discretion under s.188(2) of the Act on the basis that the employees have genuinely agreed to the Agreement.

[5] The matter was listed for eHearing on 29 March 2021. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard. No parties contacted my Chambers.

[6] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[7] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 3.3.2 – Termination of employment/withholding of monies

[8] However, noting the NES precedence undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[9] Subject to the matters raised at paragraphs [2]-[8], 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.

[10] In accordance with s.201(2), I note that the Agreement covers the IEU-QNT.

[11] The Agreement is approved and, in accordance with s.54 of the Act of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

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Attachment A.