J&L Enterprises Pty Ltd T/A Discovery Early Learning Centres

[2025] FWCA 230

[2025] FWCA 230

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

J&L Enterprises Pty Ltd T/A Discovery Early Learning Centres

(AG2024/4458)

DISCOVERY EARLY LEARNING CENTRES ENTERPRISE AGREEMENT 2024

Children's services
COMMISSIONER TRAN	MELBOURNE, 21 JANUARY 2025

Application for variation of the Discovery Early Learning Centres Enterprise Agreement 2024

1. J&L Enterprises Pty Ltd T/A Discovery Early Learning Centres has applied for approval of a variation of an enterprise agreement known as the Discovery Early Learning Centres Enterprise Agreement 2024 under s 210 of the Fair Work Act 2009.

1. The application seeks to vary various clauses of the Agreement. The Variation is attached as Annexure A to this decision.

National Employment Standards

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards:

   ·   Clause 11.8 – Abandonment of Employment

   ·   Clause 32 – Compassionate Leave

   ·   Clause 33 – Notice for Personal/Carer’s Leave

   ·   Clause 34.2 – Public Holidays

1. I note clause 6 of the Agreement, which gives precedence to the NES, and am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Delegates’ Rights

1. The United Workers’ Union lodged a Form F23B declaration, stating that it was of the view that the workplace delegates’ rights term in the Agreement (clause 43) is less favourable than clause 7A of the Children’s Services Award 2010 and clause 28A of the Educational Services (Teachers) Award 2020, which are in the same terms.

1. It is the case that Clause 43 does not provide for all the entitlements that the awards’ workplace delegates rights term contains. Clause 43 only provides for up to 5 days leave without pay each year for the purposes of representation of and consultation with union members and to attend education or other approved training courses.

1. I am of the view that the varied Agreement is not required to comply with s 205A of the Act as, in accordance with transitional provisions in Item 98 of Schedule 1 of the Act, employees were asked to vote to approve the Agreement prior to 1 July 2024. Being asked to approve an agreement is distinct from being asked to approve a variation of the agreement. I am of the view that the legislation makes a distinction between the Commission’s requirements when initially approving an agreement and when approving a variation to the agreement by the clear separation of the requirements in sections 186 and 211. While the requirements are substantially similar, the Commission may not approve a variation to an agreement if the agreement as proposed to be varied would specify a nominal expiry date that is more than 4 years after the day on which the Commission initially approved the Agreement.[1]

1. The Union directed me to a number of variation approval decisions[2] in which the variation noted that the Agreement did not contain a delegates’ rights term as required by s 205A of the Act. None of the decisions appear to engage with the relevant transitional provision.

1. While I consider that I am not required by s 205A and the transitional provisions to insert the more favourable award term into the Agreement, s 211(4) requires me to assess whether the Agreement as varied passes the better off overall test. The test time is the time that the application under s 210 is made.[3] So, I must consider whether an employee would be better off overall if the Agreement as varied applied to them than if the relevant award applied. Both awards contained the workplace delegates right term as at 12 November 2024, when the application was made.

1. The Agreement also contains clause 45, which is titled, ‘Savings Clause.’ This clause requires that the Agreement must be read “in conjunction with any changes to the Act or the Children’s Services Award 2010 in relation to workplace delegates rights” and that the more favourable entitlements regarding workplace delegates will apply. I am of the view, therefore, that in respect of workplace delegates rights and taken together with other more beneficial clauses of the Agreement (including with respect to wages and a slightly higher casual loading), an employee would be better off overall under the Agreement than under the Award.

Approval of Variation

1. I am satisfied that each requirement of ss 210 and 211 as are relevant to this application for approval of a variation have been met.

1. The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

1. In accordance with s 216 of the Act, the variation operates from 22 January 2025.

COMMISSIONER

[1] Section 211(1)(b)

[2] Asahi Beverages Pty Ltd [2024] FWCA 4389 (9 December 2024); Compass Group (Australia) Pty Ltd T/A Compass Group [2024] FWCA 4118 (25 November 2024); Programmed Offshore Pty Ltd [2024] FWCA 3911 (14 November 2024); Stanwell Corporation [2024] FWCA 4138 (27 November 2024); Stanwell Asset Maintenance Company [2024] FWCA 4144 (27 November 2024)

[3] Section 211(4)(d)

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