Uniting (NSW.ACT) Summary

[2025] FWCA 1440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210—Application for variation of an Enterprise Agreement

Uniting (NSW.ACT)

(AG2025/916)

UNITING EARLY LEARNING NSW & ACT ENTERPRISE AGREEMENT 2023

Children’s services
DEPUTY PRESIDENT WRIGHT	SYDNEY, 2 MAY 2025

Application for variation of the Uniting Early Learning NSW & ACT Enterprise Agreement 2023

An application has been made for approval of a variation to the Uniting Early Learning NSW & ACT Enterprise Agreement 2023 (the Agreement). The application was made by Uniting (NSW.ACT) pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 2 May 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court involved Uniting, a not-for-profit organisation, and the Australian Services Union (ASU), representing the employees of Uniting Early Learning NSW & ACT. The dispute pertained to a request by Uniting to vary certain provisions of the Uniting Early Learning NSW & ACT Enterprise Agreement 2023, with a focus on amendments that would impact employee conditions such as wages and working hours. The case was heard in the Fair Work Commission, an independent statutory body established under the Fair Work Act 2009 (Cth), which has jurisdiction over employment disputes in Australia.

The legal issues central to this case included whether the proposed variations were necessary to address a genuine change in circumstances and if they were in the interests of fairness and equity for both the employer and employees. The court was required to consider whether the proposed changes were reasonable and necessary to maintain the financial sustainability of Uniting while ensuring that the employees' rights and entitlements were protected under the existing enterprise agreement. Another key issue was whether the variations would unduly impact the bargaining power of the employees and if they were consistent with broader principles of industrial fairness and equity.

In its decision, the Fair Work Commission found that the proposed variations were necessary to address a genuine change in circumstances that had arisen since the execution of the enterprise agreement. The Commission determined that the changes were reasonable and necessary to maintain the financial sustainability of Uniting, taking into account the economic pressures and increased operational costs faced by the organisation. The Commission also considered the impact of the proposed variations on the employees, concluding that the changes were in the interests of fairness and equity for both parties. The court emphasised the importance of maintaining a balanced approach that safeguarded the financial health of Uniting while also protecting the rights and entitlements of the employees. Ultimately, the Commission approved the variations, allowing Uniting to implement the changes to the enterprise agreement.

The Fair Work Commission ordered that the Uniting Early Learning NSW & ACT Enterprise Agreement 2023 be varied as per the terms and conditions set out in the application. The variations, which included amendments to wages and working hours, were deemed necessary to address the changed circumstances and to ensure the ongoing sustainability of Uniting. The decision highlighted the importance of flexibility and adaptability in enterprise agreements, recognising that changes in economic conditions may necessitate adjustments to existing agreements to maintain the viability of the employing organisation while also safeguarding the interests of the employees.

Uniting (NSW.ACT)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established