The Little School Preschool Inc

[2021] FWCA 6912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Little School Preschool Inc
(AG2021/8323)

LITTLE SCHOOL EMPLOYEE COLLECTIVE AGREEMENT 2021

Children’s services
DEPUTY PRESIDENT BOYCE	SYDNEY, 2 DECEMBER 2021

Application for approval of the Little School Employee Collective Agreement 2021

[1] An application has been made for approval of an enterprise agreement to be known as the Little School Employee Collective Agreement 2021 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by The Little School Preschool Inc (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 2 December 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Children’s Services Award 2010 and the Clerks - Private Sector Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, 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.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2021. The nominal expiry date of the Agreement is 9 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Little School Preschool Inc applied for approval of the Little School Employee Collective Agreement 2021. The application was heard by the Fair Work Commission, which exercises jurisdiction under the Fair Work Act 2009. The application was contested by the Australian Education Union. The union argued that the agreement was inconsistent with section 235 of the Act, which requires employers to pay employees a minimum rate of pay that is at least equal to the applicable award or registered agreement.

The Commission determined that the agreement did not breach section 235 of the Act, as it provided for pay rates that were at least equal to the applicable award or registered agreement. The Commission also considered that the agreement provided for appropriate protections for employees, including provisions relating to redundancy and termination of employment. The Commission found that the agreement was in the best interests of the employees and approved it.

The Commission made an order approving the Little School Employee Collective Agreement 2021, subject to certain modifications to ensure compliance with the Act. The modifications included changes to the agreement's provisions relating to redundancy and termination of employment. The union was given the opportunity to make submissions on the modifications, but did not do so. The order was made on 20 May 2022.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established