Growing Potential Limited
[2025] FWCA 99
•10 JANUARY 2025
| [2025] FWCA 99 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Growing Potential Limited
(AG2024/4943)
GROWING POTENTIAL STAFF ENTERPRISE AGREEMENT 2024
| Children’s services industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 10 JANUARY 2025 |
Application for approval of the Growing Potential Staff Enterprise Agreement 2024
Introduction
Growing Potential Limited (the Employer) has made an application for approval of an enterprise agreement known as the Growing Potential Staff Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by either the Clerks – Private Sector Award 2020 (Clerks Award), Educational Services Teachers Award 2020 (Teachers Award) or the Children’s Services Award 2010 (Children’s Services Award).
Agreement Explanation
In its application, the Employer outlined the questions and feedback submitted by employees after the consultation session that was held with employees. The Employer also provided an overview of the events that took place to explain the Agreement. However, the Employer did not initially provide information about what was specifically discussed with the employees. The Employer subsequently provided submissions about how the terms and effects of the Agreement were explained to employees and the types of questions that were answered. I am satisfied, having regard to those submissions, that the requirements of s.180(5) of the Act have been met.
Correction of document under s.586
The Agreement contains referring errors ‘Error! Reference source not found’ throughout Schedule B. The Employer provided a clean copy of the Agreement which excluded the referencing errors. I have allowed a correction of Schedule B of the Agreement pursuant to s.586 in the terms sought by the Employer as I am satisfied that the correction does not alter any substantive matter in the Agreement.
Definition of a Shiftworker
The Agreement does not provide for a definition of a shiftworker for the purposes of the additional week of annual leave provided by the National Employment Standards (NES). The Awards provide for shiftworker definitions for the purposes of the additional week of annual leave in clause 32.2 of the Clerks Award and clause 24.2 of the Children’s Services Award. The Employer provided an undertaking to address this issue.
Abandonment of Employment
Clause 16 of the Agreement provides for abandonment of employment. This clause does not specifically provide that employees deemed to have abandoned their employment in accordance with the clause will be afforded their minimum notice of termination entitlement pursuant to s.117(3) of the Act. Section 123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s.117 of the Act. The Employer provided an undertaking to address this issue.
Compassionate Leave
Clause 57.1 provides for compassionate leave, however it is silent in relation to the entitlement applying when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s.104(1)(c) of the Act. The Employer provided an undertaking to address this issue.
Better off Overall Test (BOOT) Issues
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:
The rates for all Clerical Adult employees and Junior employees between 16 years and 20 years were up to 10.07% below the award rates of pay.
Clause 43 of the Agreement states that shift work shall be arranged by agreement with employee(s) concerned having regard to the operational requirements of the business, section of the business or part of the business. The Agreement did not contain any penalty rates associated with shiftwork for employees under the Children's Services Award and the Clerks Award. These Awards provide penalties between 110% and 130% depending on the timing and frequency of the shifts. The Agreement rates of pay did not appear to compensate for these reductions.
The Employer provided undertakings to address these issues.
Section 190 Undertakings
The employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached in Schedule D. 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
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
The United Workers Union (UWU) 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 UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 January 2025. The nominal expiry date of the Agreement is 10 January 2029.
DEPUTY PRESIDENT
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