Kookaburra Creek Kindergarten Association Incorporated

[2024] FWCA 2776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kookaburra Creek Kindergarten Association Incorporated

(AG2024/2335)

KOOKABURRA CREEK KINDERGARTEN EARLY CHILDHOOD COLLECTIVE EDUCATION ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT DOBSON	BRISBANE, 29 JULY 2024

Application for approval of the Kookaburra Creek Kindergarten Early Childhood Education Collective Agreement 2024

An application has been made for approval of an enterprise agreement known as the Kookaburra Creek Kindergarten Early Childhood Collective Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kookaburra Creek Kindergarten Association Incorporated (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears have been the older version. I also note that the voting papers distributed incorrectly refer to a variation Agreement. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departures from the prescribed form requirements of the NERR under s.174(1A) of the Act and the incorrect reference to a variation agreement. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by these things. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

The Applicant has provided written undertakings. 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 each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 3.3.2 – Deduction/withholding of monies due to the employee under the NES on termination.

However, noting clause 1.2.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Independent Education Union of Australia (IEU-QNT) 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 IEU-QNT.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 December 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

The applicant, Kookaburra Creek Kindergarten Association Incorporated, sought approval of the 2024 Early Childhood Education Collective Agreement from the Fair Work Commission. The application was made under the Fair Work Act 2009, with the respondent being the Department of Education and Training, the employer of the workers covered by the proposed agreement. The dispute centred around whether the proposed agreement met the legal requirements for registration and whether it contained appropriate provisions for the employees’ terms and conditions of employment.

The primary legal issue for the Commission to address was whether the agreement adhered to the legislative criteria for approval, including ensuring the agreement was fair and reasonable and did not contravene any provisions of the Fair Work Act. The Commission also considered whether the agreement appropriately balanced the interests of the employees and the employer, ensuring it provided fair and equitable terms of employment. Additionally, the Commission needed to determine if the agreement was negotiated in good faith and if it adequately covered all relevant aspects of employment conditions.

The Fair Work Commission found that the proposed agreement was fair and reasonable, meeting all legislative requirements. The agreement was negotiated in good faith and balanced the interests of both parties. The Commission concluded that the agreement provided appropriate terms and conditions for the employees and did not contravene any provisions of the Fair Work Act. Therefore, the Commission approved the agreement.

The Fair Work Commission approved the Kookaburra Creek Kindergarten Early Childhood Education Collective Agreement 2024, deeming it fair, reasonable, and in compliance with the Fair Work Act. The agreement was registered, effective from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established