Gymea Nursery School & Kindergarten Co-Op Society Limited Summary

[2025] FWCA 467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Gymea Nursery School & Kindergarten Co-Op Society Limited

(AG2025/121)

GYMEA NURSERY SCHOOL & KINDERGARTEN CO-OP SOCIETY LIMITED CHILD CARE EDUCATOR ENTERPRISE AGREEMENT 2024-2025

Children's services
DEPUTY PRESIDENT ROBERTS	SYDNEY, 6 FEBRUARY 2025

Application for approval of the Gymea Nursery School & Kindergarten Co-op Society Limited Child Care Educator Enterprise Agreement 2024-2025

An application has been made for approval of an enterprise agreement known as the Gymea Nursery School & Kindergarten Co-op Society Limited Child Care Educator Enterprise Agreement 2024-2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gymea Nursery School & Kindergarten Co-Op Society Limited (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representative for the agreement were sought in relation to the undertakings. The bargaining representative has indicated their acceptance of the undertakings provided. 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.

Having regard to the supporting material and the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

I note that Clause 3.2 of the Agreement provides that:

The NES, as amended from time to time and this Agreement combine to contain the minimum conditions of employment for the employees covered by this Agreement.
To remove any uncertainty, this Agreement wholly displaces and operates to the exclusion of all awards and any other industrial instrument that would otherwise apply to employees whose employment is regulated by the provisions of this Agreement.
If the NES or Award provide a greater benefit, the NES or Award provision will apply to the extent of the inconsistency.

The United Workers Union (UWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is, pursuant to Clause 4, twelve months from the date upon which the agreement commences operation. Accordingly, the nominal expiry date is 13 February 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Fair Work Commission, under Deputy President Roberts, was presented with an application for the approval of an enterprise agreement. The applicant, Gymea Nursery School & Kindergarten Co-Op Society Limited, sought the approval of the Gymea Nursery School & Kindergarten Co-op Society Limited Child Care Educator Enterprise Agreement 2024-2025, pursuant to section 185 of the Fair Work Act 2009. The agreement in question is a single enterprise agreement designed to cover the terms and conditions of employment for child care educators at the Gymea Nursery School. The United Workers Union indicated its acceptance of the agreement and its desire for it to cover its members.

The central legal issues before the court involved verifying whether the agreement met the criteria for approval under sections 186, 187, and 188 of the Fair Work Act 2009. These sections require that the agreement be made in good faith, provide for a fair and efficient workplace, and not discriminate against any group of employees. The court also needed to consider whether the agreement complied with the requirements set out in section 190(4) of the Act, which mandates that written undertakings regarding financial detriment and substantial changes be addressed and resolved. Furthermore, the court examined whether the agreement appropriately displaced and excluded any existing awards or industrial instruments that would otherwise apply to the employees covered by the agreement.

After reviewing the application, the Deputy President was satisfied that the agreement met all the statutory requirements for approval. The Deputy President noted that the agreement contained written undertakings that ensured there would be no financial detriment to employees and that there would be no substantial changes to the agreement. Additionally, the Deputy President acknowledged that the agreement would wholly displace any existing awards or industrial instruments that applied to the employees, except where those awards provided greater benefits. Consequently, the Deputy President approved the agreement, which will operate from its commencement date and expire twelve months later, on 13 February 2026.

Gymea Nursery School & Kindergarten Co-Op Society Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established