Yungaburra Community Kindergarten Association Inc

[2024] FWCA 3722

[2024] FWCA 3722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Yungaburra Community Kindergarten Association Inc

(AG2024/3369)

YUNGABURRA COMMUNITY KINDERGARTEN AND PRESCHOOL EARLY CHILDHOOD ENTERPRISE AGREEMENT 2024

Educational services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 25 OCTOBER 2024

Application for approval of the Yungaburra Community Kindergarten and Preschool Early Childhood Enterprise Agreement 2024

Introduction

1. Yungaburra Community Kindergarten Association Inc (the Employer) has made an application for approval of an enterprise agreement known as the Yungaburra Community Kindergarten and Preschool Early Childhood Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. 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 Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 8 November 2023 and the Agreement was made on 3 September 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Regulation 2.06 Requirements

1. The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

Notice of Employee Representational Rights (NERR)

1. The version of the NERR that was provided to employees on 4 March 2024 was erroneous in that it was the pre-reform version of the NERR. The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5)(a) of the Act, and that in circumstances where the provision of the incorrect version of NERR was not likely to have disadvantaged employees, I disregard the error as a minor technical or procedural error for the purposes of s.188(5)(a) of the Act.

Model Consultation Terms

1. The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

Delegates’ Rights Term

1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term is taken to be a term of the Agreement.

National Employment Standards (NES) Precedence Term

1. Clause 5.5 provides for compassionate leave where a member of an employee’s immediate family or household is critically ill, injured or dies. The Agreement does not provide for compassionate leave where a child that would have been a member of the employee’s immediate family or household is stillborn or where the employee or their spouse or de facto partner has a miscarriage per s.104 of the Act. Accordingly, this clause may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 1.2.2. of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

1. 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.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 November 2024. The nominal expiry date of the Agreement is 31 December 2027.

Variation

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.

1. Relevantly, it was identified that:

(a)Clause 2.6.4(b) of the agreement references the employee contribution required in paragraphs (a) to (c). The reference to paragraph (c) appears to be a typographical error as clause 2.6.4 only contains paragraphs (a) and (b).

(b)Clause 4.1.1(a) provides that ordinary hours of work for a teacher shall not exceed 37.5 hours per week of which 30 hours shall relate to the teaching of an educational program. The 27.5 hours are considered to be contact hours. The remaining 7.5 hours are non-contact hours. The total number of hours on these figures did not total 37.5 hours.

1. On 17 October 2024, the Employer agreed to the Commission’s proposal to vary the Agreement pursuant to s.218A of the Act to correct the errors. I have determined that there is a typographical error at clause 2.6.4(b) which should be amended and following clarification from the Employer concerning the intention of the clause, I consider that the reference to 7.5 non-contact hours in clause 4.1.1(a) should be amended to reflect 10 non-contact hours.

1. I am satisfied that the errors listed in [14] and [15] above are errors, defects or irregularities within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify these errors ([PR780606]). The variation will operate from the date the Agreement commences.
   

2. The Agreement attached to this Decision is the Agreement as varied and will operate from 1 November 2024.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

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