Young Men's Christian Association Of Sydney Trading AS The Y Nsw
[2025] FWCA 1217
•10 APRIL 2025
| [2025] FWCA 1217 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Young Men's Christian Association Of Sydney Trading AS The Y Nsw
(AG2025/631)
THE Y NSW - CHILDREN'S SERVICES ENTERPRISE AGREEMENT NSW 2025
| Children's services | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 10 APRIL 2025 |
Application for approval of The Y NSW - Children's Services Enterprise Agreement NSW 2025
Introduction
Young Men's Christian Association Of Sydney Trading AS The Y Nsw (the Employer) has made an application for approval of an enterprise agreement known as The Y NSW - Children's Services Enterprise Agreement NSW 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by either the Children's Services Award 2010 or the Educational Services (Teachers) Award 2020 (together the Awards)
Award Incorporation
The Agreement states at clause 6 that the Agreement, in conjunction with the Awards, provides the minimum terms, conditions and entitlements of the parties. It also provides that the Awards continue to apply to employees provided that the Agreement will apply to the extent of any inconsistency. The clause does not expressly state that the Awards are incorporated.
The Employer has provided an undertaking that the Awards are expressly incorporated into the Agreement.
Better off Overall Test (BOOT) Issues
The Pay Schedule in the Agreement refers to the rates of pay in the Awards. The Agreement provides that the early childhood education and care (ECEC) grant funding will be paid in addition to actual hourly rates. The inclusion of this amount will provide pay rates of 10% above the rates in the Awards, back paid to the first full pay period on or after 4 December 2024 for all staff employed as at Agreement approval. The ECEC 2 payment is payable from the first full pay period on or from 4 December 2025, which will add an additional 5% to pay rates. Therefore, with the inclusion of the grant funding, employee pay rates will be higher than the rates of pay under the Awards.
However, clause 10 provides the employees will not be entitled to the ECEC payment in addition to hourly rates unless the Employer’s application for funding is successful, the Employer remains eligible to receive the funding, and the Employer actually receives the ECEC funding. Therefore, whether employees are better off is contingent on the Employer receiving the ECEC funding.
This issue arose in Application by the United Workers’ Union[1] in which the Full Bench considered an application for approval of the Early Childhood Education and Care Multi-Employer Agreement 2024-2026 (the ECEC Agreement). The Full Bench noted that one of the concerns raised with the bargaining representatives was that the rates of pay in the ECEC Agreement at test time were the same as those in the relevant awards and, therefore, it was not clear how employees could be considered better off than if they were paid under the awards given that the ECEC Agreement did not actually require employers to apply for an Early Childhood Education and Care Worker Retention Payment (EWRP) grant.[2] In response to these concerns, employers provided written undertakings to the Commission that they would each apply for the EWRP Grant by no later than 1 January 2025 if they had not already applied. The Full Bench was satisfied that these written undertakings will ensure that employees are better off overall under the ECEC Agreement, particularly noting that EWRP payments will be backdated to 2 December 2024 once approved.[3]
In the application before me, clause 10(a) of the Agreement provides that the Employer will do all things necessary to gain access to the funding on behalf of itself and/or its employees including making an application for funding. In addition, the Employer has provided an undertaking it applied for ECEC grant funding on 25 March 2025. On the basis of the terms of clause 10(a) of the Agreement and the Employer’s undertaking, and applying the Full Bench’s reasoning in Application by the United Workers’ Union, I am satisfied that employees are better off overall under the Agreement.
Section 190 Undertakings
The Employer has provided written undertakings which are attached as 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
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 and the Statement of Principles on Genuine Agreement as are relevant to this application for approval have been met.
Section 183 Bargaining Representatives
The United Workers Union (UWU) 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 UWU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2025. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
[1] [2024] FWCFB 461
[2] Ibid, [29]
[3] Ibid, [30]
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