EARLY LEARNING CENTRE AGREEMENT 2026 - 2028 FOR MIRRABROOK EARLY LEARNING CENTRE LIMITED

Application for approval of the Early Learning Centre Agreement 2026 - 2028 for Mirrabrook Early Learning Centre Limited

[1] An application has been made for approval of an enterprise agreement known as the Early Learning Centre Agreement 2026 - 2028 for Mirrabrook Early Learning Centre Limited (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act) by The Association of Independent Schools NSW trading as ISNSW (Applicant). The Agreement is a single enterprise agreement.

[2] The Agreement does not contain a model consultation term compliant with the Act. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[3] Schedule 2 of the Agreement contains a workplace delegates' rights term. Following the making of the Agreement, the Full Court of the Federal Court of Australia (Court) published a decision relating to delegates' rights terms in modern awards in the matter of[ ]Construction, Forestry and Maritime Employees Union v Australian Industry Group.11 [2025] FCAFC 187. Since that decision and in response to the conclusions of the Court, a Full Bench of the Commission[2] has determined that all modern awards are to be varied to include a new delegates' rights clause. This includes the Educational Services (Teachers) Award 2020 and the Educational Services (Schools) General Staff Award 2020 (Awards), which are the underpinning awards for the Agreement. The Full Bench determined that the new delegates' rights clause in modern awards would operate on and from 1 July 2024. Schedule 2 of the Agreement contains similar deficiencies to those outlined in the Full Court decision. Submissions were sought from the parties as to the terms of the proposed delegates' rights clause and the effect of these decisions. I am of the view that the delegates' rights term in the Agreement is less favourable than the corresponding term that appears in the Awards.[3] I note that the terms of the delegates rights clause of the Awards are in the same terms. In accordance with s.201(1A) of the Act, note that the delegates' rights term in the Educational Services (Teachers) Award 2020 is taken to be a term of the Agreement.

[4] On the basis of the material filed in support of the application I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 December 2028.

[2] [2026] FWCFB 5.

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