Prospect Community Early Education and Care Incorporated

[2022] FWCA 3052

[2022] FWCA 3052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Prospect Community Early Education and Care Incorporated

(AG2022/3422)

Prospect Community Early Education and Care Incorporated Collective Agreement 2022

Children’s services
COMMISSIONER PLATT	ADELAIDE, 2 SEPTEMBER 2022

Application for approval of the Prospect Community Early Education and Care Incorporated Collective Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Prospect Community Early Education and Care Incorporated Collective Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Prospect Community Early Education and Care Incorporated (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 23 August 2022.

1. On 25 August 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. The Applicant has submitted an undertaking in the required form dated 1 September 2022. The undertaking deals with the following topics:

· For the purpose of clause 19 of the Agreement, the definition of serious misconduct will be as per regulation 1.07 of the Fair Work Regulations 2009.

·   Any employee required to work overtime on a Saturday, Sunday or public holiday will be paid for a minimum of four hours pay.

·   The company will not make a deduction for annual leave taken in advance of accrual without the signed written agreement of the relevant employee.

·   An employee who works on a public holiday will be paid at a rate of 250%, inclusive of any casual loading, for the hours that they work.

·   The entitlement to compassionate leave contained in clause 41 of the Agreement will be extended to an employee if a baby in their immediate family or household is stillborn, they have a miscarriage, or their current spouse or de facto partner has a miscarriage.

·   The rates of pay for Early Childhood Teachers are amended to ensure the Agreement passes the better off overall test (BOOT). The amended rates are attached to the undertakings at the end of the Agreement.

·   The company will not employ Juniors for the life of the Agreement.

·   The company will not employ shiftworkers for the life of the Agreement.

·   Employees who are classified as Early Childhood Teachers will not be required to work in excess of the maximum period set out in the Educational Services (Teachers Award) 2020 (the Teachers Award).

·   The company will pay Trainees at the rate of either the Teachers Award or the Children’s Services Award 2010 (the Children’s Services Award) as relevant, during their first twelve months of employment. For any trainee that is still working toward their qualification after the first twelve months of their service, their rates of pay will be equivalent to Childcare Assistant – Level 1.

· Employees who are engaged as Educational Leaders will be paid an allowance in accordance with clause 19.4 of the Teachers Award.

·   The Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery for employees covered by the Children’s Services Award and the Teachers Award.[1]

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

[1] [2017] FWCFB 1664

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