s.437A - Application for a protected action ballot order - multi-enterprise agreements

Proposed protected action ballot of employees of Acacia Avenue Pre-School Assoc Inc and 379 other Victorian early childhood education employers

• [1] This decision concerns an application by the Australian Education Union (AEU or Applicant) made under s.437A of the Fair Work Act 2009 (Act) for protected action ballot orders in relation to certain employees of 380 employers who are subject to a Single Interest Employer Authorisation (SIEA) issued by the Commission on 3 June 2024.[1] The SIEA has been issued in the context of a proposed multi-enterprise agreement.

• [2] The ballot application relates to a group of Victorian early childhood education providers that are currently bargaining for the proposed Victorian Early Childhood Teachers and Educators Agreement and are authorised to bargain together. The employers concerned are set out in Appendix A of this decision and are collectively referred to as the Employers.

• [3] Each of the Employers has appointed the Early Learning Association Australia (ELAA) as their bargaining representative.

• [4] The group of employees to be balloted at each employer are employees for whom the AEU is acting as the bargaining representative and who fall within the coverage of the SIEA; namely those employed as:
  • Early childhood teachers,
  • Early childhood educators (certificate III qualified and diploma qualified), employed to support the delivery of kindergarten education programs, including those employed as an additional assistant or activity group leader,
  • Early childhood advisors, early childhood advisors in charge and preschool field officers, and
  • Nominated supervisors and educational leaders.

• [5] On 14 July 2025, the Commission was advised by the ELAA that the Employers did not object to the Application, if amended to address certain issues. The Employers proposed an amendment to item 9 of the proposed questions set out in clause 5 of the draft order and to extend the number of days for the employers to provide the list of eligible employees to the ballot agent to seven calendar days. The AEU subsequently provided the Commission with an amended F34 application generally reflecting the above changes. As to the revised question 9, I have adopted the more comprehensive draft proposed by the Employers in the interests of clarity, noting that it is to the same effect as that agreed by the AEU. The ELAA also informed the Commission and the AEU that seven employers do not have any active employees covered by the proposed agreement. By consent, the application has been amended to remove these parties.

• [6] In the circumstances, I have decided to grant leave to amend the application, and determine the matter on the papers without holding a hearing.

• [7] On the basis of the material before me, including the declaration of Justin Mullaly, President of the AEU, setting out the steps taken by the AEU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

• [8] The ballots are to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballots.

• [9] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in each ballot is 14 August 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [10] In conjunction with this Decision, an Order for each individual employer will be issued progressively and the details of print numbers are also set out below in Appendix A.

• [11] As advised to the parties, the Employers have been named in this Decision and the relevant Order by reference to the Australian Business Numbers (ABN) provided in the application. This has involved minor corrections to the stated names and in some limited cases, correcting the ABN itself. However, in each case the employer party remains that as covered by the SIEA.

• [12] I observe for completeness that as this matter involves bargaining for a multi-enterprise agreement, s.414 of the Act provides that the minimum period of written notice for any industrial action will be 120 hours.

• [13] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference involving all relevant parties. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

Balnarring Pre-School And Infant Welfare Association Incorporated

Canterbury Norwood Baptist Kindergarten Association Inc

East Brunswick Kindergarten and Childcare Centre Inc.

Eureka Community Kindergarten Association Incorporated

Holy Trinity Anglican Kindergarten Hampton Incorporated

Kath Foley Childrens Centre & Kindergarten Incorporated

Kensington Community Children's Co-Operative Limited

Keysborough Community Childrens Centre Incorporated

Lake Tyers Health & Childrens Services Association Inc.

Melbourne Archdiocese Catholic Schools Early Years Education Ltd

Melbourne University Family Club Co-Operative Limited

The Merri Community Childcare Centre And Kindergarten Inc.

North East Regional Pre-School Association Incorprated

Perry Street Child Carecentre And Elizabeth Gorman Memorial Kindergarten Incorporated

Raleigh Street Community Children's Centre Incorporated

Red Hill And District Memorial Pre School & Infant Welfare Centre Inc

Russell Court Kindergarten And Childrens' Centre Inc

Sandhurst Catholic Early Childhood Education & Care Limited

Vista Valley Bulleen Kindergarten Association Incorporated

Woodhouse Grove Kindergarten Association Incorporated

Yarrambat Plenty Pre School Association Incorporated

Young Mens Christian Association Of Whittlesea Incorporated

[1] B2024/235 (PR775629).

[2] This is, in effect, 22 working days from the making of this Decision and was the specific date sought in the Application.

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