Kidzspace Pty Ltd atf Kidzspace Managment Unit Trust trading as Little Legends ELC
[2025] FWCA 1497
•7 MAY 2025
| [2025] FWCA 1497 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Kidzspace Pty Ltd atf Kidzspace Managment Unit Trust trading as Little Legends ELC
(AG2025/1155)
LITTLE LEGENDS ELC EMPLOYEES EWRP ENTERPRISE AGREEMENT 2024-2026
| Children's services | |
| COMMISSIONER REDFORD | MELBOURNE, 7 MAY 2025 |
Application for approval of the Little Legends ELC Employees EWRP Enterprise Agreement 2024-2026
An application has been made for approval of an enterprise agreement known as the Little Legends ELC Employees EWRP 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 Kidzspace Pty Ltd atf Kidzspace Managment Unit Trust trading as Little Legends ELC (Little Legends). The Agreement is a single enterprise agreement.
NERR Inconsistency
The Notice of Employee Representational Rights (NERR) distributed by Little Legends was not in the form required by s 174(1A) of the Act. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(5) of the Act. Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act.
Undertakings
The Agreement is similar terms to an agreement contemplated by a Full Bench of the Commission in Application by United Workers Union[1] where approval was sought in respect to 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 did 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”
Little Legends has provided similar undertakings, which are 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 views of the bargaining representatives for the proposed agreement have been sought and provided pursuant to s 190(4) of the Act. The undertakings are taken to be a term of the agreement.
I note further that in this matter that 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 undertakings provided by Little Legends, consider that the agreement meets the requirements of s 186(2)(d) of the Act.
Workplace Delegates Rights
As the Agreement does not contain a workplace delegates rights term, Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by clause 7A of the Children’s Services Award 2010 is taken to be a term of the Agreement.
Flexibility Term
While clause 7 of the agreement contains a flexibility term, it does not comply with several requirements of s 203 of the Act. Section 202 provides that if an agreement does not contain a flexibility term - as defined by the requirements set out in s 203 of the Act – the model flexibility term is taken to be a term of the agreement. As employees were asked to approve the agreement on or after 26 February 2025, pursuant to s 202(4) and clause 107 of Schedule 1 of the Act, the model flexibility term as prescribed by the Fair Work Regulations 2009 will be taken to be a term of the Agreement.
Consideration
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.
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.
The Agreement is approved and, in accordance with s 54 of the Act, will operate 7 days after approval.
Typographical errors
Upon review of the Agreement, it was apparent there were several minor typographical errors. I propose to exercise my power pursuant to s 218A(2)(b) of the Act to correct these obvious errors as I am satisfied that they are errors, defects or irregularities within the meaning of the Act. I have sought the views of the bargaining representatives in relation to this proposition, and there was no objection. Accordingly, the Agreement is varied as follows:
a.By replacing the reference at clause 16.5(b) to “clause 11.6(a)” with “clause 16.5(a)”
b.By replacing the reference at clause 16.6(b) to “clause 11.6(a)” with “clause 16.6(a)”
c.By replacing the reference at Schedule C.3 to “clause E.2” with “clause C.2”
d.By replacing the reference at Schedule C.3 to “clause E.1” with “clause C.1”
e.By replacing the reference at Schedule C.3 to “clause E.4.2” to “clause C.4.2”
This variation will operate from the date the Agreement commences.
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
<AE528900 PR787037>
0
0
0