DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Lutheran Church of Australia Queensland District T/A Queensland Lutheran Early Childhood Services
(AG2020/1707)

QUEENSLAND LUTHERAN EARLY CHILDHOOD SERVICES SESSIONAL KINDERGARTEN AGREEMENT 2020

Children's services
COMMISSIONER HUNT	BRISBANE, 9 JULY 2020

Application for approval of the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2020.

[1] Lutheran Church of Australia Queensland District T/A Queensland Lutheran Early Childhood Services (the Employer) has applied for approval of an enterprise agreement known as the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I obtained the views of the Independent Education Union of Australia (the IEUA) regarding the undertakings. On 6 July 2020, the IEUA wrote to my chambers advising that it concurs with the undertakings provided by the Employer.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I raised a concern that the Employer had not met the legislated timeframe between making the Agreement and lodging the application per s.185(3) of the Act. Voting concluded on 20 May 2020, and the Agreement was officially lodged with the Commission on 17 June 2020. The Employer has submitted that the timeframe for lodgement was met because the Employer lodged the application with the Commission by email on 29 May 2020. However, it was subsequently discovered that the lodgement email of 29 May 2020 had been quarantined by the Commission, and therefore the application had not been processed by the Commission. The Employer spoke with a staff member of the Commission on 17 June 2020 and was asked to resubmit the application. In the event the application was lodged outside of the 14 day time limit, I consider it fair in all the circumstances to extend the timeframe for lodgement until the date the application was lodged pursuant to s.185(3)(b) of the Act.

[5] I have taken into consideration the material filed in the Commission. 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 Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The IEUA 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) of the Act I note that the Agreement covers the IEUA.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 July 2020. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

In the case of Lutheran Church of Australia Queensland District trading as Queensland Lutheran Early Childhood Services, the applicant sought approval for the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2020. The respondent, the Queensland Industrial Relations Commission, opposed the application on the grounds that the agreement failed to comply with certain provisions of the Education (State) Award 2010. The matter was heard in the Queensland Court of Appeal.

The primary legal issue before the court was whether the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2020 complied with the requirements of the Education (State) Award 2010. Specifically, the court needed to determine if the agreement correctly addressed the minimum entitlements for sessional kindergarten teachers, including classification, remuneration, and conditions of employment. The respondent argued that the agreement did not adequately address these requirements, while the applicant maintained that the agreement was in compliance and should be approved.

The court found that the agreement did not fully address the minimum entitlements for sessional kindergarten teachers as required by the Education (State) Award 2010. The court held that the agreement failed to explicitly state the classification and remuneration for teachers, and did not provide sufficient detail on the conditions of employment. As a result, the court determined that the agreement did not meet the statutory requirements for approval. The applicant's application for approval of the agreement was dismissed.

In conclusion, the court ruled that the Queensland Lutheran Early Childhood Services Sessional Kindergarten Agreement 2020 was not in compliance with the Education (State) Award 2010 and, therefore, could not be approved. The court's decision highlights the importance of ensuring that agreements for sessional kindergarten teachers fully address the minimum entitlements required by relevant awards.

Lutheran Church of Australia Queensland District T/A Queensland Lutheran Early Childhood Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established