Casuarina Childcare Centre T/A Casuarina Childcare Centre Inc

[2025] FWCA 910

[2025] FWCA 910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Casuarina Childcare Centre T/A Casuarina Childcare Centre Inc

(AG2025/391)

CASUARINA CHILDCARE CENTRE AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2024

Children's services
COMMISSIONER YILMAZ	MELBOURNE, 14 MARCH 2025

Application for approval of the Casuarina Childcare Centre and United Workers Union Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Casuarina Childcare Centre and United Workers Union 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 Casuarina Childcare Centre T/A Casuarina Childcare Centre Inc. The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is 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 a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met.

1. I observe that clause 33.1 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertakings referred to above, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model flexibility term is attached in Annexure B.

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 organisation.

1. The Agreement is approved and in accordance with s.54, will operate from 21 March 2025. The nominal expiry date of the Agreement is 1 December 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE528344 PR785202>

Annexure A

Annexure B

Schedule 2.2     Model flexibility term

(regulation 2.08)

Model flexibility term

1. An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

   (a)the agreement deals with 1 or more of the following matters:

   (i)arrangements about when work is performed;

   (ii)overtime rates;

   (iii)penalty rates;

   (iv)allowances;

   (v)leave loading; and

   (b)the arrangement meets the genuine needs of the employer and employee in relation to 1 or more of the matters mentioned in paragraph (a); and

   (c)the arrangement is genuinely agreed to by the employer and employee.

   (2)The employer must ensure that the terms of the individual flexibility arrangement:

   (a)are about permitted matters under section 172 of the Fair Work Act 2009; and

   (b)are not unlawful terms under section 194 of the Fair Work Act 2009; and

   (c)result in the employee being better off overall than the employee would be if no arrangement was made.

   (3)The employer must ensure that the individual flexibility arrangement:

   (a)is in writing; and

   (b)includes the name of the employer and employee; and

   (c)is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of  the employee; and

   (d)includes details of:

   (i)the terms of the enterprise agreement that will be varied by the arrangement; and

   (ii)how the arrangement will vary the effect of the terms; and

   (iii)how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

   (e)states the day on which the arrangement commences.

   (4)The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

   (5)The employer or employee may terminate the individual flexibility arrangement:

   (a)by giving no more than 28 days written notice to the other party to the arrangement; or

   (b)if the employer and employee agree in writing — at any time.