Kirinari Early Childhood Centre

[2025] FWCA 280

[2025] FWCA 280

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Kirinari Early Childhood Centre

(AG2024/5105)

KIRINARI EARLY CHILDHOOD CENTRE ENTERPRISE AGREEMENT 2024-2027

Children's services
DEPUTY PRESIDENT ROBERTS	SYDNEY, 23 JANUARY 2025

Application for approval of the Kirinari Early Childhood Centre Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Kirinari Early Childhood Centre Enterprise Agreement 2024-2027 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kirinari Early Childhood Centre (the Applicant). The Agreement is a single enterprise agreement. 

1. A number of issues relating to the application were identified and raised with the Applicant. Submissions were provided by the Applicant in response. I deal with these matters in turn below.

Incorrect format of Notice of Representational Rights (NERR)

1. The NERR provided to employees and lodged with the Commission was not in the form required by s.174(1A) of the Act. It was instead presented as a letter engrossed with the Applicant’s logo. An explanation was provided by the Applicant for the error and the Applicant submitted that the error did not materially impact on the employees’ understanding of their representational rights. I note that the substance of the content of the NERR was consistent with the requirements of the Act.

Inconsistency in agreement title and title proposed in NERR

1. The NERR refers to the proposed agreement as "Kirinari Early Childhood Centre Enterprise Agreement," whereas Clause 1.1 of the agreement specifies the Agreement title as "Kirinari Early Childhood Centre Enterprise Agreement 2024-2027."

1. I sought and received submissions as to whether it was appropriate to deal with the foregoing deficiencies pursuant to s.188(5) of the Act. I am satisfied that it is appropriate to do so. I am also satisfied that these are minor technical errors and that the employees were not likely to have been disadvantaged by them. I propose to disregard these errors under s.188(5).

Abridged access period

1. Employees were notified of the time, place and method of vote via email on 9 December 2024 and voting for the Agreement commenced on 16 December 2024. Accordingly, employees were not notified of the time, place and method of vote 7 clear days prior to the commencement of voting as referred to in clauses 15 and 16 of the Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Statement). I am required by s.188(1) to take account of the Statement to determine whether I can be satisfied that the Agreement has been genuinely agreed to by the employees covered by it. Having regard to the submissions of the Applicant and the participation of the employees in the voting process I am satisfied that the Agreement has been genuinely agreed to by the employees.

1. I am satisfied that each of the requirements of ss186, 187 and 188 as is relevant to this application for approval has been met. 

1. I note that Clause 5.1 of the Agreement provides that:

   “The Agreement will be read and interpreted in conjunction with the National Employment Standards (‘NES’). Where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”

1. 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.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is, in accordance with Clause 3.2 of the Agreement, three years from the date of this approval. The nominal expiry date is therefore 23 January 2028.

DEPUTY PRESIDENT

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