The Creche and Kindergarten Association Limited T/A C & K

[2025] FWCA 175

[2025] FWCA 175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Creche and Kindergarten Association Limited T/A C & K

(AG2024/4932)

C&K CHILDREN’S SERVICES ENTERPRISE AGREEMENT 2024

Children’s services
DEPUTY PRESIDENT DOBSON	BRISBANE, 16 JANUARY 2025

Application for approval of the C&K Children’s Services Enterprise Agreement 2024

1. This decision deals with an application made for approval of an enterprise agreement known as the C&K Children’s Services Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by The Creche and Kindergarten Association Limited (the Applicant). The Agreement is a single enterprise agreement.

1. There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[1] The Applicant provided a list of casual employees who were engaged during the relevant period. I found that 114 casual employees should not have been given an opportunity to vote (or voted) as he/she was not engaged during the access period or on the day of the vote. However, I find that by reference to the evidence before me as to the vote that occurred, that whether those 114 casual employees voted in favour of the approval of the agreement, voted against it, or otherwise abstained, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote. Further, whilst I am satisfied that all reasonable steps were taken to ensure eligible employees voted on the proposed agreement, I note that 23 casual employees were not given an opportunity to vote. voted in favour of the approval of the agreement, however I also note that if all 23 of those employees voted against it, or otherwise abstained, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote. Hence, having regard to the submissions of the Applicant and the evidence before me, I find that these errors constitute minor procedural and/or technical errors in accordance with s.188(2) of the Act.[2] I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[3] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[4]

1. Correspondence was sent to the Employer by my chambers on 20 December 2024 raising a number of concerns including that the Agreement provisions for Part Time employees working overtime may be less favourable than the relevant Award. The Employer responded on 24 December 2024, advising that such employees will be paid where they are required to work more than 8 hours in addition to their normal hours or for all work in excess of 8 hours per day, at overtime rates. I am consequently satisfied that per s. 193A(6A) of the Act part time employees being directed to complete such additional hours without being paid overtime is not reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test.

1. The Agreement does not contain a delegates rights term that in all respects, is no less favourable than the modern award. I observe that, for example, the following provision is likely to be inconsistent with the Delegates Rights Term in the Award:

·   Clause 22 – Provision for United Workers Union (UWU) Delegates to meet with new employees which may restrict other eligible unions from meeting with new employees.

However, noting clause 22.17 of the Agreement provides for the more beneficial parts of Delegates Rights Terms to apply when read in conjunction with the Award, I am satisfied the more beneficial entitlements will prevail where there is an inconsistency between the Agreement and the Award.

1. On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[5] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 35.5 – Deductions

·   Clause 36.3 – Compassionate Leave

·   Clause 36.5 – Personal Leave

·   Clause 36.10 – Carers Leave

·   Clause 41.3 – Public Holidays

·   Clause 42.4 – Jury Service leave

·   Clause 49 – Family and Domestic Violence Leave

·   Clause 51.7 – Withholding of monies due to insufficient notice being given

However, noting clause 4.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The UWU lodged a Form F18 statutory declaration giving 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 the Agreement covers the UWU.

1. The Agreement is approved and will operate from 23 January 2025. The nominal expiry date of the Agreement is 30 November 2026.

DEPUTY PRESIDENT

[1] Kmart Australia Limited T/a Kmart and Others [2019] FWCFB 75992.

[2] Kingston City Council T/A King City Council [2020] FWCA 2323, at [49].

[3] Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

[4] Ibid.

[5] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023

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