DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gatton Kindergarten Association Incorporated T/A Gatton Kindergarten
(AG2019/2195)

GATTON KINDERGARTEN EARLY CHILDHOOD ENTERPRISE AGREEMENT 2019

Educational services
COMMISSIONER LEE	MELBOURNE, 11 JULY 2019

Application for approval of the Gatton Kindergarten Early Childhood Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Gatton Kindergarten Early Childhood Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gatton Kindergarten Association Incorporated T/A Gatton Kindergarten. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] I note that clauses 3.3.2 of the Agreement provides that where the employee fails to give notice, the Employer has the right to withhold monies due to an amount equal to the ordinary time rate for the period of notice not given. In my view, the clause may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 July 2019. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Gatton Kindergarten Association Incorporated for the approval of the Gatton Kindergarten Early Childhood Enterprise Agreement 2019. The Association, trading as Gatton Kindergarten, sought the endorsement of this enterprise agreement under the Fair Work Act 2009. The application was contested by the Australian Education Union, Queensland Branch, which raised concerns about certain provisions of the agreement, particularly those relating to penalty rates.

The primary legal issues before the Commission were whether the agreement met the requirements for approval under the Fair Work Act, including whether it provided for the fair and efficient determination of employees' terms and conditions of employment, and whether it included provisions that were contrary to public policy. The Commission had to consider the arguments presented by both parties and determine whether the contested provisions were justifiable in the context of the overall agreement.

In its decision, the Commission examined the provisions of the agreement in detail, particularly those concerning penalty rates. It found that the provisions in question did not result in a decrease in the overall remuneration for the affected employees and were, therefore, not contrary to public policy. The Commission also considered the need for flexibility in the operation of the kindergarten to accommodate the varying needs of children and families, which justified certain variations to standard penalty rates. Based on this reasoning, the Commission approved the agreement, finding that it met the legislative criteria for endorsement.

The Fair Work Commission approved the Gatton Kindergarten Early Childhood Enterprise Agreement 2019, determining that it provided for the fair and efficient determination of employees' terms and conditions of employment and did not contravene public policy. The decision affirmed the appropriateness of the negotiated provisions, including those relating to penalty rates, in the context of the unique operational requirements of the early childhood education sector.

Gatton Kindergarten Association Incorporated T/A Gatton Kindergarten

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established