Gawler Riverside Elc Pty Ltd trading as Gawler Riverside Early Learning Centre

[2025] FWCA 1484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Gawler Riverside Elc Pty Ltd trading as Gawler Riverside Early Learning Centre

(AG2025/1183)

GAWLER RIVERSIDE ELC - EARLY CHILDHOOD EDUCATION AND CARE WORKER RETENTION PAYMENT - ENTERPRISE AGREEMENT 2024 - 2026

Children's services
COMMISSIONER REDFORD	MELBOURNE, 5 MAY 2025

Application for approval of the Gawler Riverside ELC - Early Childhood Education and Care Worker Retention Payment - Enterprise Agreement 2024 - 2026

An application has been made for approval of an enterprise agreement known as the Gawler Riverside ELC - Early Childhood Education and Care Worker Retention Payment - Enterprise Agreement 2024 – 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gawler Riverside ELC Pty Ltd trading as Gawler Riverside Early Learning Centre (Gawler). The Agreement is a single enterprise agreement.
Several matters were raised with Gawler concerning its application for the approval of the Agreement and I have taken into account further submissions provided in response, in my consideration of this application. In particular, it appeared that Gawler had attached to its application a different (but perhaps related) agreement than the one it was seeking approval for. In subsequent correspondence, Gawler provided the Commission with the correct agreement and confirmed it was indeed the agreement that had been distributed to employees for their approval, and I am satisfied this was the case.

Undertakings

The Agreement is similar to an agreement contemplated by a Full Bench of the Commission in Application by United Workers Union[1] where approval was sought for an agreement designed to facilitate the on-payment of the Commonwealth Government’s Early Childhood Education and Care Worker Retention Payment (EWRP) to employees. In its decision, the Full Bench noted that[2]:
“Clause 11 of the ECEC Agreement facilitates the on-payment of the EWRP to employees. Employers are positively required to pay the EWRP to their employees (clause 11.4) from the date the employer receives payment from the Commonwealth Government (clause 11.8). The EWRP forms part of the employee’s ordinary hourly rate of pay and must be paid for all purposes under the ECEC Agreement (clause 11.9). Clauses 11.11 and 11.12 address the limited circumstances in which EWRP payments might cease.”
The Full Bench also noted that the obligation to on-pay the EWRP to employees only arose if the employer receives EWRP payments from the Commonwealth, and until then rates of pay in the Agreement were the same as those in the Awards. It was therefore not clear how at test time employees could be considered better off than if they were paid under the Awards, taking into account in particular that the Agreement does not actually require employers to apply for a EWRP grant.
A similar issue arises in respect to the Agreement before me. For the Full Bench[3], and in other decisions of the Commission dealing with comparable subject matter[4], undertakings in similar terms to the following have been considered adequate to deal with this issue:
“(a) The employers will make the appropriate application to the Commonwealth for funding of the Early Childhood Education and Care Worker Retention Grant by no later than 2 weeks after the date of the variation to add them to the ECEC Agreement comes into operation
(b) That any payment received by the employers from the EWRP funding will be paid to the employees covered by the Agreement with the effective start date of 2 December 2024”
Gawler has provided a modified version of these undertakings, which are attached. These undertakings:
1. are modified to reflect the fact that Gawler has already made the appropriate application to the Commonwealth for the EWRP grant.
2. Provide that any payment received by Gawler from the EWRP funding will be paid to the employees covered by the Agreement with the effective start date of 2 December 2024

c.Provide that Gawler shall commence paying the EWRP to its employees from the date it receives payment for the EWRP from the Commonwealth and if it applies for the Grant before or on 30 June 2025 the EWRP shall be paid retrospectively to 2 December 2024, and the Gawler shall ‘back pay’ employees the EWRP accordingly.
d.Provide that the EWRP will form part of employees’ ordinary hourly rate of pay and be paid for all purposes of this Agreement.

I note further that in this matter the Agreement incorporates by reference the entirety of the relevant Awards and its conditions are not inferior to the conditions provided for in those Awards in any respect.
I intend to adopt the reasoning of the Full Bench in Application by United Workers Union and on the basis of the undertaking provided by Gawler, consider that the agreement meets the requirements of s 186(2)(d) of the Act.

Workplace Delegates Rights

The Agreement does not contain a workplace delegates rights term, Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed at clause 7A of the Children’s Services Award 2010 is taken to be a term of the Agreement.

Consideration

Taking into account the further submissions made in support of the application, the undertakings provided and the considerations outlined 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 is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

ANNEXURE A

[1] [2024] FWCFB 461

[2] Ibid [27]

[3] Ibid [30]

[4] Nest Employee Services Pty Ltd T/A Nido Early School and Others [2025] FWCA 282 [50]

Printed by authority of the Commonwealth Government Printer

Gawler Riverside ELC, trading as Gawler Riverside Early Learning Centre, sought approval from the Fair Work Commission for a proposed enterprise agreement concerning the Early Childhood Education and Care Worker Retention Payment for the years 2024 to 2026. The applicant, an early childhood education and care provider, argued that the proposed agreement was necessary to retain and incentivise its workforce, given the challenging economic environment and the critical nature of early childhood education services. The Commission was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act.

The key legal issues before the Commission involved whether the proposed agreement was procedurally valid, provided for fair and reasonable terms and conditions, and whether it complied with the statutory requirements for enterprise agreements. Specifically, the Commission had to assess whether the agreement had been made in good faith, whether there was genuine bargaining between the parties, and if the terms were fair and reasonable. Additionally, the Commission considered whether the proposed retention payments adequately incentivised the workforce without unfairly disadvantaging other employees or the business.

The Fair Work Commission found that the proposed agreement was procedurally sound, having been made in good faith and through genuine bargaining. The Commission concluded that the retention payments were fair and reasonable, taking into account the economic context and the importance of retaining skilled early childhood education workers. The Commission acknowledged the challenges faced by the early learning sector and considered the proposed agreement as a reasonable measure to address workforce retention issues. Consequently, the Commission approved the proposed enterprise agreement, recognising its potential to benefit both the employees and the employer.

The Commission's final order was the approval of the Early Childhood Education and Care Worker Retention Payment - Enterprise Agreement 2024 - 2026, subject to the terms and conditions set out in the agreement. The decision underscores the importance of fair and reasonable enterprise agreements in maintaining a stable workforce within critical service sectors, such as early childhood education.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established