Caterpillar House Occasional Childcare Association Incorporated

[2025] FWCA 2160

[2025] FWCA 2160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Caterpillar House Occasional Childcare Association Incorporated

(AG2025/1841)

CATERPILLAR HOUSE OCCASIONAL CHILDCARE ASSOCIATION INC ENTERPRISE AGREEMENT 2025

Educational services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 11 JULY 2025

Application for approval of the Caterpillar House Occasional Childcare Association Inc Enterprise Agreement 2025

Introduction  

1. Caterpillar House Occasional Childcare Association Incorporated trading as Caterpillar House Occasional Childcare Association Incorporated (the Employer) has made an application for approval of an enterprise agreement known as the Caterpillar House Occasional Childcare Association Inc Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. 

1. The Agreement will apply to employees who are covered by either the Clerks – Private Sector Award 2020 (Clerks Award), the Children's Services Award 2010 (Childrens Services Award) or the Educational Services (Teachers) Award 2020 (Teachers Award). 

Shift Worker

1. The Commission raised a concern with the Employer regarding the definition of a shiftworker. The Employer submits that due to the nature of its operations, shiftwork is not feasible and will not be implemented in the future. Accordingly, it submits that the definition of shiftworker is not applicable in relation to the Clerks Award and the Children Services Award. I accept the Employer’s submission.

Model Flexibility Term  

1. The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Regulations) is taken to be a term of the Agreement. A copy of the model flexibility term can be found in Attachment A of the Agreement. 

Model Consultation Terms  

1. The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement. A copy of the model consultation term can be found in Attachment B of the Agreement. 

Better off Overall Test (BOOT) Issues

1. The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award: 

Employees covered by the Clerks Award

1. Agreement rates of pay are identical to the Clerks Award so it is unclear how employees can be considered better off overall.

   2. Clause 13(a) of the Agreement provides that the minimum part-time hours on a shift are two hours. Clause 10.5 of the Clerks Award provides a three-hour minimum engagement period.
   3. Clause 10.6 of the Clerks Award provides that all time worked in excess of the agreed hours is overtime and must be paid at overtime rates. Clause 13(c) of the Agreement provides that a part-time employee may work regular shifts of up to 10 hours in any day without the payment of overtime provided the number of hours of work in any week will not exceed 38. Clause 13(d) provides that a part time employee who agrees to work in excess of their normal shifts on an irregular basis will be paid at ordinary time for up to eight hours per day and provided that any additional times are worked during the ordinary hours of operation and do not exceed 38 hours per week.
   4. Clause 14.1.2 of the Agreement provides that the casual minimum engagement is two hours. Clause 11.4 of the Clerks Award provides a three-hour minimum engagement period.
   5. The Agreement is silent in relation to penalties for ordinary hours on Sundays and overtime on Sundays. Clauses 24 and 31 of the Clerks Award provide for ordinary hours on Sundays to be paid at the rate of 200% of the minimum hourly rate for dayworkers at the rate of 150% of the minimum hourly rate for shiftworkers. Clause 21 of the Clerks Award provides for Sunday overtime at the rate of 200% of the minimum hourly rate. In relation to this matter, the Employer submitted that the Agreement is silent in relation to penalties for ordinary hours on Sundays and overtime on Sunday as it does not operate on weekends and does not intend to in the future.
   6. Clause 15.1(e) of the Agreement provides a loading of 125% to shiftworkers on Saturdays. Clause 31.1 of the Clerks Award provides 150%.
   7. The Clerks Award appears to provide that casual loading is applied on a cumulative basis, as Clause 21.4(a) provides that overtime rates for casual employees are calculated by adding the casual loading to the overtime rates. Clause 14.1.3 of the Agreement provides that employees receive base rates of pay as set out in Schedule 1, plus overtime penalties. As such it appears they do not receive the casual loading for overtime.

Employees covered by the Childrens Services Award

8. Clause 13(c) of the Agreement provides that a part-time employee may work regular shifts of up to 10 hours in any day without the payment of overtime provided the number of hours of work in any week will not exceed 38. This reduces overtime triggers compared to the Award.
9. The Agreement is silent in relation to penalties for ordinary hours on Sundays and overtime on Sundays. Clause 23.5(c) of the Children’s Services Award provides a penalty of 200% for ordinary hours and overtime on Sundays. In relation to this matter, the Employer submitted that the Agreement is silent in relation to penalties for ordinary hours on Sundays and overtime on Sunday as it does not operate on weekends and does not intend to in the future.
10. Clause 15.1(e) of the Agreement provides a loading of 125% to shiftworkers on Saturdays. Clause 23.5(b) of the Children’s Services Award provides 150%.

Employees covered by the Teachers Award

11. Clause 14.1.2 of the Agreement provides a casual minimum engagement of two hours. Clause 17.5(c)(ii) of the Teachers Award provides for a minimum payment of two hours for work up to two hours, a minimum payment of four hours for work over two hours and up to four hours, and the full day rate where required to work over four hours. A casual employee working over two hours under the Agreement may receive a lesser minimum payment than under the Teachers Award and may be worse off, depending on patterns of work.
12.  Clause 20 and Schedule 1, Table 2 of the Agreement provide rates of pay for employees which are inclusive of the Early Childhood Education and Care Worker Retention payment Grant (EWRP Grant). These rates will be backdated to apply from 2 December 2024 but only once an application is made and approved for the EWRP Grant.

Section 190 Undertakings 

1. The Employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is Attachment C. of the Agreement. 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. 

Section 186, 187, 188 and 190  

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. 

Section 183 Bargaining Representatives  

1. The Independent Education Union of Australia (IEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. 

1. In accordance with s.201(2), I note that the Agreement covers the IEU.

Approval 

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 July 2025. The nominal expiry date of the Agreement is 31 December 2027.  

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Attachment C