Shailer Road Community Kindergarten Assoc. Inc. T/A Shailer Road Community Kindergarten

[2025] FWCA 217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Shailer Road Community Kindergarten Assoc. Inc. T/A Shailer Road Community Kindergarten

(AG2024/5108)

SHAILER ROAD COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2024

Educational services
COMMISSIONER HUNT	BRISBANE, 21 JANUARY 2025

Application for approval of the Shailer Road Community Kindergarten Early Childhood Education Enterprise Agreement 2024

Shailer Road Community Kindergarten Assoc. Inc. T/A Shailer Road Community Kindergarten (the Employer) has applied for approval of an enterprise agreement known as the Shailer Road Community Kindergarten Early Childhood Education Enterprise Agreement 2024 (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.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 21 October 2024 and the Agreement was made on 11 December 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

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 sought the views of the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

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.

I initially raised a concern in respect to the Agreement not providing for certain allowances that are otherwise payable under the underpinning awards. On reflection, I am satisfied that the better off overall test is met.

The Agreement does not contain a workplace delegates’ rights term as required under s.205A of the Act for agreements made on or after 1 July 2024. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Children’s Services Award 2010 is attached to the Agreement and taken to be a term of it.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 January 2025. The nominal expiry date of the Agreement is 31 December 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

In this case, the applicant, Shailer Road Community Kindergarten Association Incorporated trading as Shailer Road Community Kindergarten, sought the approval of the Fair Work Commission for the proposed Early Childhood Education Enterprise Agreement 2024. The application was made under the Fair Work Act 2009. The respondents were the Fair Work Ombudsman and two registered early childhood education unions, the Australian Education Union and the Community and Public Sector Union. The primary dispute revolved around whether the terms and conditions outlined in the proposed agreement met the legislative requirements for approval under the Fair Work Act, particularly in relation to provisions governing wages, working conditions, and other employment-related matters.

The court was required to determine whether the proposed agreement was in accordance with the various legislative provisions aimed at ensuring fair and reasonable terms for employees in the early childhood education sector. The central issues included whether the agreement provided for a safety net of minimum wages and conditions, whether it complied with the requirements for good faith bargaining, and if the agreement contained provisions that were not contrary to public policy or industrial peace.

The court carefully examined the proposed agreement against the statutory benchmarks established by the Fair Work Act. It assessed the wage provisions to ensure they met the minimum safety net standards, considered the bargaining process to confirm compliance with good faith requirements, and evaluated the overall content of the agreement to ascertain it did not conflict with public policy or industrial harmony. After thorough analysis, the court found that the proposed agreement met all the necessary criteria for approval. It was concluded that the agreement provided adequate wage protections, adhered to good faith bargaining principles, and did not contain any terms that would be detrimental to the public or industrial relations.

Accordingly, the Fair Work Commission approved the Shailer Road Community Kindergarten Early Childhood Education Enterprise Agreement 2024, thereby resolving the application in favour of the applicant. The decision ensured that the terms of the agreement would provide a fair and reasonable framework for employment within the early childhood education sector, aligning with the legislative intent of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established