District Kindergarten Association Inc T/A Emerge Early Years Services
[2025] FWC 493
•21 FEBRUARY 2025
| [2025] FWC 493 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees
District Kindergarten Association Inc T/A Emerge Early Years Services
(AG2025/123)
| COMMISSIONER JOHNS | MELBOURNE, 21 FEBRUARY 2025 |
Application for orders in relation to transfer of business – application granted.
Introduction
This is an application pursuant to s.318 of the Fair Work Act 2009 (FW Act) made by District Kindergarten Association Inc T/A Emerge Early Years Services (Applicant).
The Applicant seeks orders from the Fair Work Commission (Commission) that the Early Education Employees Agreement 2020 (Transferable Instrument) does not cover the Applicant and the transferring employees – Ms Camille Jones, Ms Remy George, and Ms Jacqueline Kiem (Transferring Employees). Instead, the Applicant seeks that these employees be covered by the Victorian Early Childhood Teachers and Educators Agreement 2020 (VECTEA).
Background
The Applicant and Yariambiack Shire Council (YSC) are both constitutional corporations. The Transferring Employees are currently employed by YSC. YSC plans to cease providing early childhood education services in Hopetoun and Beaulah. Consequently, the Transferring Employees will be redeployed to the Applicant, maintaining their existing roles and responsibilities.
The Applicant submits that the Transferring Employees will not be disadvantaged by the order being made by the Commission. The Applicant contends that this is because VECTEA broadly provides for almost identical rates of pay, allowances and terms compared to the Transferable Instrument.
The application was supported by forms completed by each Transferring Employee, indicating their consent to the Orders being made.
On 22 January 2025, I issued Directions in furtherance of the matter.
On 23 January 2025, the Applicant provided a statutory declaration confirming that a copy of my Directions, the Form F40 application and its accompanying documents were served on any affected employee and any relevant employee organisation.
I had directed that the Applicant file with the Commission and serve on any affected employee and any relevant employee organisation an outline of argument, statements of evidence, and any other documentary material in support of its application by 28 January 2025. However, no such submissions were received. My Chambers contacted the Applicant’s representative on 19 February 2025 who confirmed that the Applicant wished to rely on its initial submissions and will not be filing any additional material.
On 23 January 2025, the United Workers’ Union (UWU), an employee organisation covered by the Transferable Instrument, advised the Commission that they do not oppose the application and that they do not intend to file any materials in relation to the matter.
Seeing as there were no submissions received in opposition to the orders sought, the application has been decided on the papers.
Legislative framework
s.318 of the FW Act sets out the circumstances in which an Order may be made by the Commission:
“318 Orders relating to instruments covering new employer and transferring employees
Orders that the FWC may make
(1) The FWC may make the following Orders:
(a) an Order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;
(b) an Order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.
Who may apply for an Order
(2) The FWC may make the Order only on application by any of the following:
(a) the new employer or a person who is likely to be the new employer;
(b) transferring employee, or an employee who is likely to be a transferring employee;
(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;
(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).
Matters that the FWC must take into account
(3) In deciding whether to make the Order, the FWC must take into account the following:
(a) the views of:
(i) the new employer or a person who is likely to be the new employer; and
(ii) the employees who would be affected by the Order;
(b) whether any employees would be disadvantaged by the Order in relation to their terms and conditions of employment;
(c) if the Order relates to an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;
(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;
(g) the public interest.
Restriction on when Order may come into operation
(4) The Order must not come into operation in relation to a particular transferring employee before the later of the following:
(a) the time when the transferring employee becomes employed by the new employer;
(b) the day on which the Order is made.”
Consideration
The Commission will now consider each of the matters it is required to consider under s.318(3) of the FW Act.
s.318(3)(a)(i) - the views of the new employer
The Applicant submitted that YSC plans to exit from providing early child education services (namely kindergarten services) in Hopetoun and Beulah. It submits that the Transferring Employees will be redeployed to the Applicant to perform the same services and perform the same function.
s.318(3)(a)(ii) - the view of the employees who would be affected by the Order
On 11 December 2025, YSC wrote to the Transferring Employees, informing them that they intend on transferring early childhood education services to the Applicant. The Transferring Employees were also informed that the Applicant will be applying to the Commission for an order that the Victorian Early Childhood Teachers and Educators Agreement 2020 applies to their agreement instead of the Early Education Employees Agreement 2020. The Transferring Employees were asked to sign the form to indicate if they consent to the proposed Orders. Ms Camille Jones signed the form on 22 December 2024; Ms Jacqueline Keim signed the form on 19 December 2025; and Ms Remy George signed the form on 23 December 2024.
s.318(3)(b) - whether any employees would be disadvantaged by the Order in relation to their terms and conditions of employment
The Applicant submitted that the Transferring Employees would not be disadvantaged by the making of the order in relation to their terms and conditions of the employment.
The Applicant submitted that the VECTEA broadly provides for almost identical rates of pay, allowances, and terms compared to the Transferable Instrument. The Applicant also provided a table submitting that the following provisions are more favourable under VECTEA compared to the Transferable Instrument:
Provision Transferable Instrument VECTEA Parental leave 14 weeks paid parental leave for a primary carer.
2 weeks paid parental leave for a non-primary carer.
16 weeks paid parental leave for a primary carer.
4 weeks paid parental leave for a non-primary carer.
Meal breaks 30 minutes after 5.5 hours of rostered work.
If meal break is delayed, work exceeding 5.5 hours without a break is paid at time and a half.
30 minutes after 5.5 hours of rostered work or compensation at the hourly rate plus loading of 25% if not able to be taken. Personal leave 10 days personal leave or 15 days personal leave for teachers per annum. 15 days personal leave for all employees per annum. Graduate teacher mentoring Mentors will be allocated an appropriate amount of time for mentoring activities. Mentors will be entitled to up four days
Furthermore, the Applicant also noted Clause 49.7 and 15.5 (relating to Fixed-term contracts), as well as Clause 24 (relating to Rosters) of the VECTEA, which are not present in the Transferable Instrument, that the Applicant submits are also favourable to the Transferring Employees.
s.318(3)(c) - if the Order relates to an enterprise agreement—the nominal expiry date of the agreement
The nominal expiry date of the Transferring Agreement is agreement is 20 September 2024. The nominal expiry date of the VECTEA is also 20 September 2024.
s.318(3)(d) - whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
The Applicant made no submissions in respect of this factor. Therefore, this is a neutral consideration.
s.318(3)(e) & (f) – economic disadvantage and degree of business synergy
The Applicant made no submissions in respect of this factor. Therefore, this is a neutral consideration.
s.318(3)(g) - the public interest
The Commission, as presently constituted, is satisfied that it is not against the public interest to grant the Orders sought by the applicant.
Conclusion
Having considered the application and the materials filed in support of the application, the Commission is satisfied that all the requirements of s.318 of the FW Act have been met. An Order will be issued with this decision [PR784529].
COMMISSIONER
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