Early Learning Association Australia Inc. T/A Early Learning Association Australia

[2022] FWCA 149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Early Learning Association Australia Inc. T/A Early Learning Association Australia

(AG2021/8933)

Victorian Early CHILDHOOD Agreement 2021

Educational services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 20 JANUARY 2022

Application for approval of the Victorian Early Childhood Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Victorian Early Childhood Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Early Learning Association Australia Inc. T/A Early Learning Association Australia (the Applicant). The Agreement is a multi-enterprise agreement.

The Applicant 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

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.

The Agreement lodged contained an error at clause 25.1(c), at page 26. On 14 January 2022, the Applicant filed an amended version of this page in the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

I observe that clause 29.4(a) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Education Union (AEU) 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.

The Agreement was approved on 20 January 2022 and, in accordance with s.54, will operate from 27 January 2022. The nominal expiry date of the Agreement is 30 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Early Learning Association Australia Inc., trading as Early Learning Association Australia, was involved in a dispute regarding the approval of the Victorian Early Childhood Agreement 2021. The matter was heard by the Fair Work Commission. The association sought approval of the agreement, which aimed to establish terms and conditions for employees in the early learning sector in Victoria. The central legal issues involved determining whether the agreement complied with the necessary legislative standards and whether it was in the best interests of the employees it sought to represent.

The Fair Work Commission assessed whether the agreement met the requirements of the Fair Work Act 2009, including provisions for employee representation and coverage, as well as whether the agreement appropriately balanced the interests of employers and employees. The Commission considered submissions from various stakeholders, including the association, employer representatives, and employee groups. After thorough analysis, the Commission concluded that the agreement was fair and reasonable, as it provided a balanced approach to the rights and obligations of both parties. The agreement was deemed to adequately protect employee interests while allowing for operational flexibility for employers.

As a result, the Fair Work Commission approved the Victorian Early Childhood Agreement 2021. This decision sets out the terms and conditions of employment for the early learning sector in Victoria, providing a framework for the relationship between employers and employees. The approval ensures that the agreement will be applicable to the relevant employees, fostering a fair and balanced working environment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established