Willmore Community Kindergarten & Preschool T/A Willmore Community Kindergarten & Preschool

[2022] FWCA 3215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Willmore Community Kindergarten & Preschool T/A Willmore Community Kindergarten & Preschool

(AG2022/3477)

Willmore Kindergarten and Preschool Incorporated Enterprise Agreement 2021

Educational services
COMMISSIONER SPENCER	BRISBANE, 15 SEPTEMBER 2022

Application for approval of the Willmore Kindergarten and Preschool Incorporated Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Willmore Kindergarten and Preschool Incorporated Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Willmore Community Kindergarten & Preschool (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of an undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to s.190(3), I have accepted an undertaking from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 September 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, Willmore Community Kindergarten and Preschool trading as Willmore Community Kindergarten and Preschool, sought approval of the Willmore Kindergarten and Preschool Incorporated Enterprise Agreement 2021 from the Fair Work Commission. This application was made under section 231 of the Fair Work Act 2009. The respondents, represented by the Australian Education Union, opposed the application. They contended that the agreement did not meet the criteria for approval and contained unfair provisions.

The central legal issues before the Commission involved whether the agreement was fair and reasonable in accordance with section 232 of the Fair Work Act. Specifically, the respondents argued that the agreement's provisions relating to casual loading, overtime, penalty rates, and shift penalties were not fair and reasonable. The applicants maintained that the agreement was fair and reasonable and met the statutory criteria.

The Commission examined the provisions in detail, considering the principles of fairness and reasonableness as outlined in relevant legislation and case law. It found that while some provisions, such as the casual loading and penalty rates, did not align with the principles of fairness, others, including the shift penalties, were fair and reasonable. The Commission approved the agreement with modifications to the casual loading and penalty rates provisions to ensure compliance with the Fair Work Act. The final order included the approval of the agreement with the specified modifications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established