Isis Community Pre-School & Kindergarten Assoc Inc

[2024] FWCA 4035

[2024] FWCA 4035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Isis Community Pre-School & Kindergarten Assoc Inc

(AG2024/3987)

ISIS COMMUNITY PRESCHOOL AND KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 19 NOVEMBER 2024

Application for approval of the Isis Community Preschool and Kindergarten Early Childhood Education Collective Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Isis Community Preschool and Kindergarten Early Childhood Education Collective Enterprise Agreement 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Isis Community Pre-School & Kindergarten Assoc Inc (Employer). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement precedes 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions which commenced on 6 June 2023 do not apply to this approval application.[1] However, the Agreement was made after 6 June 2023. Accordingly, the amendments to the better off overall test have commenced and so apply to this approval application.[2]

1. Clause 1.1 of the Agreement provides for the title to be “Isis Community Preschool and Kindergarten Early Childhood Education Collective Enterprise Agreement 2024.” The Agreement title in the Notice of Employee Representational Rights (NERR) is the “Isis Community Preschool and Kindergarten Early Childhood Education Collective Enterprise Agreement.” This may mean that the NERR was not in its prescribed form. Having regard to the Employer’s submissions, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it. I consider that the Agreement has been genuinely agreed to within the meaning of s 188(2) of the Act.  

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. I observe that the following clause is likely to be inconsistent with the National Employment Standards (NES). However, noting clause cl 1.2.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES: 

   • The Agreement contains provisions setting out the conversion scheme for casual employees, however these provisions do not identify the position following the reforms to the Act commencing from 26 August 2024, which will be available to eligible employees from February 2025.  

1. Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Educational Services (Teachers) Award 2020 is taken to be a term of the Agreement. 

1. The Independent Education Union of Australia – Queensland and Northern Territory Branch (IEUQNT) being a bargaining representative for the Agreement and has given 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 that the Agreement

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 26 November 2024. The nominal expiry date of the Agreement is 31 December 2027. 

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, in relation to the genuine agreement provisions, Division 11 of Part 26 of the Amending Act provides that Part 2-4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023

[2] Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

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