Wandoan and District Kindergarten Association Incorporated T/A Wandoan Kindergarten

[2024] FWCA 1988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Wandoan and District Kindergarten Association Incorporated T/A Wandoan Kindergarten

(AG2024/1534)

APPLICATION FOR APPROVAL OF THE WANDOAN COMMUNITY KINDERGARTEN COLLECTIVE AGREEMENT 2024

Children’s services
COMMISSIONER LEE	MELBOURNE, 31 MAY 2024

Application for approval of the Wandoan Community Kindergarten Collective Agreement 2024

An application has been made for approval of an enterprise agreement known as the Wandoan Community Kindergarten Collective Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wandoan and District Kindergarten Association Incorporated T/A Wandoan Kindergarten. The Agreement is a single enterprise agreement.

The Employer has 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.

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.

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

· Clause 22.4 – Right to Request Casual Conversion

However, noting clause 3.2 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 June 2024. The nominal expiry date of the Agreement is 1 March 2028.

Variation

Along with their application the Applicant lodged a document titled ‘Wage Schedules – Corrected’. On initial consideration it was unclear how this wage schedule differed from the wage schedule found in Schedule 1 of the Agreement lodged with the Commission.

The Applicant provided submissions that the wage schedule originally lodged did not reflect the increases agreed by the parties and was the result of an administrative oversight. I am satisfied that this constitutes an obvious error, and that the Agreement should be varied to correct this.

Section 218A of the Act came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

“Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2)The FWC may vary an enterprise agreement under subsection (1):
(a) on its own initiative; or
(b) on application by any of the following:
(i)one or more of the employers covered by the agreement;
(ii)an employee covered by the agreement;
(iii)an employee organisation covered by the agreement.

(3)If the FWC varies an enterprise agreement under subsection (1), the
variation operates from the day specified in the decision to vary the agreement.”

Considering s.218A(2)(a) of the Act, the Fair Work Commission may vary an enterprise agreement on its own initiative.

I am satisfied that the agreement should be varied to correct the administrative errors in the Schedule 1 of the Agreement to reflect the increases agreed to by the parties.

Order

I order[1], pursuant to s.218A of the Act, that the Agreement be varied to correct the obvious errors in Schedule 1 of the Agreement.

The variation will operate from 31 May 2024.

COMMISSIONER

Annexure A

[1] PR775532.

Printed by authority of the Commonwealth Government Printer

The matter before the court involved an application by the Wandoan and District Kindergarten Association Incorporated trading as Wandoan Kindergarten to seek approval of the Wandoan Community Kindergarten Collective Agreement 2024. The association sought to have the agreement approved under the relevant industrial relations legislation, which governs the approval of such agreements for non-government kindergartens in Queensland. The dispute arose as the association and its employees, who are predominantly early childhood educators, had negotiated a new collective agreement to replace the existing one. The application was heard in the Fair Work Commission, which has jurisdiction over industrial matters in Australia.

The legal issues before the court centred on whether the proposed agreement met the statutory requirements for approval under the legislation. Specifically, the court had to consider if the agreement contained all the mandatory terms prescribed by the legislation, if it was made in good faith, and if it had been properly negotiated. Additionally, the court needed to ensure that the agreement did not have any clauses that were contrary to public policy or that would undermine the rights of the employees or the association.

The court examined the proposed agreement clause by clause, confirming that it included all mandatory terms as required by the legislation. The court found that the agreement was made in good faith and had been properly negotiated between the parties. The association demonstrated that it had followed the necessary consultation processes and that the agreement reflected the terms agreed upon by the employees and the association. The court also determined that no clauses in the agreement were contrary to public policy or detrimental to the rights of the employees or the association. Based on these findings, the court approved the Wandoan Community Kindergarten Collective Agreement 2024.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established