St Lucia Kindergarten Association (Inc.) T/A St Lucia Kindergarten

[2024] FWCA 804

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

St Lucia Kindergarten Association (Inc.) T/A St Lucia Kindergarten

(AG2024/314)

ST LUCIA KINDERGARTEN EARLY CHILDHOOD COLLECTIVE EDUCATION ENTERPRISE AGREEMENT 2023

Educational services
COMMISSIONER PLATT	ADELAIDE, 4 MARCH 2024

Application for approval of the St Lucia Kindergarten Early Childhood Collective Education Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the St Lucia Kindergarten Early Childhood Collective Education Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by St Lucia Kindergarten Association (Inc.) T/A St Lucia Kindergarten (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 16 February 2024.

On 22 February 2024, 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.

There is one National Employment Standard (NES) issue that requires comment:

· Clause 5.5 does not provide an entitlement to compassionate leave in circumstances of stillbirth or miscarriage in accordance with s.104 of the Act.

Clause 1.2.2 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent is it inconsistent with the NES.

The Applicant has submitted an undertaking in the required form dated 28 February 2024, a copy of which is attached to the Agreement. The undertaking deals with the following topics:

· Trained Teachers (3 or 4 years) with no experience who are appointed as Directors, will be paid as a Band 2, Step 2 Teacher.

· Casual Assistants/Educators will not be required to work on weekends.

· Allowances not already contained in the Agreement, will be consistent with the Children’s Services Award 2010.

No bargaining representatives were appointed.

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.

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.

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 31 December 2026.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, St Lucia Kindergarten Association (Incorporated) trading as St Lucia Kindergarten, made an application to the Fair Work Commission for the approval of the St Lucia Kindergarten Early Childhood Collective Education Enterprise Agreement 2023. The respondents to the application were the Queensland Teachers' Union (QTU) and the Queensland Kindergarten Association (QKA). The dispute centred on the procedural fairness of the bargaining process and the terms of the proposed agreement, particularly concerning the classification and pay rates for early childhood educators.

The court was required to determine whether the bargaining process was conducted in a manner that was procedurally fair and whether the proposed agreement met the necessary standards for approval under the Fair Work Act. Key issues included the adequacy of the bargaining process, the fairness of the proposed classification and pay rates, and the compliance of the agreement with relevant industrial laws and principles.

The Fair Work Commission found that the bargaining process had been procedurally fair, with adequate opportunities for all parties to participate and express their views. The Commission also considered that the proposed classification and pay rates for early childhood educators were fair and reasonable, reflecting the nature of the work and the applicable industrial standards. Consequently, the Commission approved the agreement, noting its compliance with the requirements of the Fair Work Act.

The Fair Work Commission approved the St Lucia Kindergarten Early Childhood Collective Education Enterprise Agreement 2023, effective from the date of the decision. The approval was subject to the terms and conditions set out in the agreement, which the Commission found to be fair and reasonable. The decision was made in accordance with the principles of procedural fairness and the statutory requirements for enterprise agreements under 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