The Creche And Kindergarten Association Limited T/A The Creche And Kindergarten Association Limited

[2023] FWCA 690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Creche And Kindergarten Association Limited T/A The Creche And Kindergarten Association Limited

(AG2022/5426)

C&K Children’s Services Enterprise Agreement 2022

Educational services
COMMISSIONER SIMPSON	BRISBANE, 3 MARCH 2023

Application for approval of the C&K Children’s Services Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the C&K Children’s Services Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Creche And Kindergarten Association Limited T/A The Creche And Kindergarten Association Limited (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 4.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers’ Union (UWU) lodged a Form F18 statutory declaration supporting approval of the Agreement and 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 that the Agreement covers the UWU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Creche And Kindergarten Association Limited, trading as The Creche And Kindergarten Association Limited, sought approval of the C&K Children’s Services Enterprise Agreement 2022 from the Fair Work Commission. The Association represents employers in the children’s services sector, and the application was made under the Fair Work Act 2009. The dispute centred on whether the agreement met the criteria for approval as a safety net agreement, particularly in terms of its provisions for minimum wages and conditions.

The court had to determine whether the agreement adequately protected employees' wages and conditions, and whether it provided a fair and reasonable safety net for workers in the industry. This involved examining the agreement's provisions against the standards set out in the National Employment Standards and the applicable awards. The court also had to consider the balance between the parties' bargaining power and the need to ensure that employees were not disadvantaged by the agreement.

In assessing the application, the Fair Work Commission found that the agreement provided for minimum wages and conditions that were in line with the statutory safety net. The Commission noted that the agreement included provisions for regular pay increases and had mechanisms to ensure fair treatment of employees. It also acknowledged the need for flexibility in the children’s services sector, which could impact wages and conditions. Ultimately, the Commission concluded that the agreement provided an appropriate safety net and approved the application.

The Commission's decision to approve the agreement reflects its view that the provisions were fair and reasonable, taking into account the unique aspects of the children’s services industry. This decision ensures that employees within this sector are protected under a legally recognised agreement while allowing for necessary flexibility in their employment conditions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established