Tinana Preschool & Kindergarten Association Inc.

[2024] FWCA 3864

[2024] FWCA 3864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tinana Preschool & Kindergarten Association Inc.

(AG2024/3725)

TINANA PRESCHOOL & KINDERGARTEN ASSOCIATION INC. EARLY CHILDHOOD ENTERPRISE AGREEMENT (2024)

Educational services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 5 NOVEMBER 2024

Application for approval of the Tinana Preschool & Kindergarten Association Inc. Early Childhood Enterprise Agreement (2024)

Introduction

1. Tinana Preschool & Kindergarten Association Inc. (the Employer) has made an application for approval of an enterprise agreement known as the Tinana Preschool & Kindergarten Association Inc. Early Childhood Enterprise Agreement (2024) (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 31 July 2024 and the Agreement was made on 11 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

1. The NERR was erroneous in that the name of the proposed enterprise agreement was incorrect, reading ‘‘Tinana Preschool and Kindergarten Association Inc. Early Childhood Enterprise Agreement’ when clause 1.1 of the Agreement provides that its title is ‘Tinana Preschool & Kindergarten Association Inc. Early Childhood Enterprise Agreement 2024’ [emphasis added].

1. The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

Terms of the Agreement

1. Clause 3.3.1(d) provides that the period of notice of termination outlined at clauses 3.3.1(a) to (c) will not apply in the case of dismissal for misconduct or other grounds that justify instant dismissal. This clause is inconsistent with s.123 of the Act and reg. 1.07 of the Fair Work Regulations 2009, which provide for summary dismissal when an employee engages in serious misconduct. I accordingly note that this clause is unenforceable by the Employer.

National Employment Standards (NES) Precedence Term

1. Clause 3.3.2(a) provides that an employee will give the employer four weeks’ notice of resignation, and that if the employee fails to give the appropriate notice, the employer has the right to withhold monies due to the employee up to an amount equal to the ordinary time rate for the period of notice not given. The Educational Services (Teachers) Award 2020 and the Children’s Services Award 2010 provide for a maximum deduction of two weeks’ wages and one week’s wages respectively. However, the wording of clause 3.3.2(a) does not limit the source of the deduction to ‘wages’ and accordingly may be interpreted as enabling deductions from NES entitlements which are payable on termination.

1. Clause 5.13.7 of the agreement provides that an employee who is experiencing domestic violence will have access to five days per year of unpaid special leave (on a non-cumulative basis) to address issues related to the domestic violence. This appears to be inconsistent with s. 106A of the Act which provides that an employee is entitled to 10 days of paid family and domestic violence leave in a 12-month period.

1. These clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 1.2.2. of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 November 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

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