SDN Children's Services

[2025] FWCA 2189

[2025] FWCA 2189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

SDN Children's Services

(AG2025/1687)

SDN ENTERPRISE AGREEMENT 2025

Children's services
DEPUTY PRESIDENT SLEVIN	SYDNEY, 3 JULY 2025

Application for approval of the SDN Enterprise Agreement 2025

1. An application has been made by SDN Children's Services (Applicant) for approval of an enterprise agreement known as the SDN Enterprise Agreement 2025 (Agreement). The Application is made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Applicant describes itself as a “hybrid” Centre that provides children services but is not subsidised as a childcare provider.  The Agreement is a single enterprise agreement. The Commission must approve the agreement if the requirements in ss. 186 and 187 of the Act are met.

1. Sections 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s. 193A. Section 193A(2) describes the test as a global assessment and requires the Commission to assess whether each employee concerned would be better off having regard to the terms of the agreement which would be more beneficial to the employee and the terms of the agreement which would be less beneficial than if the relevant modern award applied. Section 193A(3) requires the Commission to give consideration to any views relating to whether the agreement passes the better off overall test that have been expressed by the employer covered by the agreement and any bargaining representative for the agreement.

1. Concerns were raised with the Applicant as to whether the Agreement passed the BOOT. There is some complexity to this assessment as in this case there are multiple Awards that need to be considered and compared for the purposes of the test. Those awards are the:

Children’s Services Award 2010;

Educational Services (Teachers) Award 2020;

Educational Services (Schools) General Staff Award 2020;

Social, Community, Home Care and Disability Services Industry Award 2010;

Clerks – Private Sector Award 2020; and

Miscellaneous Award 2020.

1. The Applicant responded by providing undertakings addressing some concerns and with submissions that while some terms of the Agreement provided conditions that were less beneficial than the relevant Award, making a global assessment having regard the terms of the Agreement that are more beneficial to employees, the Agreement passes the BOOT. The submissions and undertakings were provided to the Independent Education Union of Australia (IEU) and the United Workers Union (UWU) who were bargaining representatives for the Agreement. The bargaining representatives did not raise any issue with the undertakings or submissions raised.

1. A copy of the undertakings is attached (Annexure A). I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement.  

1. Having regard to the undertakings and the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss. 186 and 187 are met.   

1. The IEU and the UWU have given notice under s. 183 of the Act that they want the Agreement to cover them. In accordance with s. 201(2) of the Act, I note the Agreement covers the IEU and the UWU.  

1. The Agreement was approved on 3 July 2025 and will operate from 10 July 2025 in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 December 2026.  

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE529566  PR788859>

ANNEXURE A