Kookaburra Creek Kindergarten Association Incorporated
[2024] FWCA 2776
•29 JULY 2024
| [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.
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