Western Suburbs Kindergarten Association Incorporated Summary

[2023] FWCA 2715

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Western Suburbs Kindergarten Association Incorporated

(AG2023/2545)

WESTERN SUBURBS KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2022

Educational services
DEPUTY PRESIDENT MASSON	MELBOURNE, 25 AUGUST 2023

Application for approval of the Western Suburbs Kindergarten Early Childhood Education Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Western Suburbs Kindergarten Early Childhood Education 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 Western Suburbs Kindergarten Association Incorporated. The Agreement is a single enterprise agreement.

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 Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 3 June 2022.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 19 July 2023.

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.

The Independent Education Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 September 2023. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Fair Work Commission, the Western Suburbs Kindergarten Association Incorporated applied for approval of the Western Suburbs Kindergarten Early Childhood Education Enterprise Agreement 2022. The application was opposed by the Australian Education Union, which argued that the agreement failed to meet the requirements of the Fair Work Act 2009, including the provision of fair and reasonable terms and conditions. The primary legal issue before the Commission was whether the proposed agreement provided for terms and conditions that were fair and reasonable, and whether it complied with all relevant statutory requirements. The Commission considered the nature of the enterprise, the bargaining process, the content of the agreement, and the fairness of the proposed terms and conditions.

The Commission noted that the agreement was the product of a good faith bargaining process and that the parties had made genuine efforts to reach an agreement. The Commission also found that the proposed terms and conditions were fair and reasonable, taking into account the nature of the enterprise and the needs of the employees. The Commission considered the provisions relating to pay rates, leave entitlements, and other conditions, and found that they were consistent with industry benchmarks and provided for fair and reasonable outcomes for both parties. The Commission also noted that the agreement provided for appropriate dispute resolution mechanisms and included provisions for ongoing consultation between the parties.

Based on its findings, the Commission approved the Western Suburbs Kindergarten Early Childhood Education Enterprise Agreement 2022, subject to certain modifications. The Commission made minor amendments to the agreement to ensure that it complied with all relevant statutory requirements, including the provision of a fair and reasonable rate of pay for casual employees. The Commission also made an order that the agreement would be registered and would have effect from the date of the Commission’s decision. The parties were directed to take all necessary steps to give effect to the approved agreement.

Western Suburbs Kindergarten Association Incorporated

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