DECISION

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

Carina Kindergarten & Preschool Assoc. Inc.
(AG2020/508)

CARINA KINDERGARTEN & PRESCHOOL ASSOC. INC. COLLECTIVE ENTERPRISE AGREEMENT 2019

Children's services
COMMISSIONER BOOTH	BRISBANE, 20 APRIL 2020

Application for approval of the Carina Kindergarten & Preschool Assoc. Inc. Collective Enterprise Agreement 2019.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Carina Kindergarten & Preschool Assoc. Inc. (the Applicant) for approval of the Carina Kindergarten & Preschool Assoc. Inc. Collective Enterprise Agreement 2019 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and bargaining representatives on 17 March 2020, raising concerns in relation to the Agreement.

[3] The Applicant filed submissions and undertakings addressing the concerns raised, on 25 March 2020.

[4] 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.

[5] It is noted that clause 25.4 – redundancy, may be inconsistent with the National Employment Standards (NES). However, noting the NES precedence clause at clause 3.2 of the Agreement, I am satisfied that where the NES provides a great benefit, the NES provision will apply to the extent of the inconsistency.

[6] Subject to the undertakings provided and the matter raised at paragraph [5], I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[7] The Agreement is approved and, in accordance with clause 4.1 of the Agreement and s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A

CaseChat Overview and Summary

The case involved the application by Carina Kindergarten & Preschool Assoc. Inc. to the Fair Work Commission for approval of the 2019 Collective Enterprise Agreement. This agreement pertained to the employment conditions of workers in the early childhood education and care sector in Queensland. The application came before the Fair Work Commission, the federal workplace relations tribunal in Australia, which has jurisdiction over such matters.

The primary legal issues the Commission needed to address were whether the agreement complied with the Fair Work Act 2009, particularly sections relating to the need for the agreement to be in writing, provide for minimum entitlements, and to be free from prohibited content. The Commission also needed to consider if the agreement had been made in accordance with the relevant provisions of the Act, including whether there was genuine bargaining and if the agreement was fair and reasonable.

In determining the application, the Commission assessed the contents of the agreement, the process by which it was negotiated, and the evidence provided by the parties. The Commission found that the agreement was in writing and provided for the required minimum entitlements. It also found no evidence of prohibited content and that the agreement had been genuinely bargained for. The Commission concluded that the agreement was fair and reasonable, taking into account the specific circumstances of the early childhood education sector and the bargaining positions of the parties. As such, the Commission approved the agreement.

The Fair Work Commission approved the application for the Collective Enterprise Agreement, finding it to be in compliance with the Fair Work Act 2009 and suitable for the specific context of the early childhood education sector. The Commission's decision was based on the agreement being properly negotiated, in writing, providing for minimum entitlements, and free from prohibited content.

Carina Kindergarten & Preschool Assoc. Inc.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established