Application for approval of The Rosny Early Learning Enterprise Agreement #8/2024

[1] An application has been made for approval of an enterprise agreement known as the Rosny Early Learning Enterprise Agreement #8/2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Burles Consulting Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] 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.

[4] The Australian Municipal, Administrative, Clerical & Services Union (ASU), 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 organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 37.8 - notification in respect of personal leave: provides that 'employees will notify the Employer of any personal leave absence prior to their normal commencement of work, as soon as practicable.' The Agreement clause appears to provide a more stringent notice requirement than permitted by s.107(2)(a) of the Act, which provides that notice must be given to an employer as soon as practicable (which may be a time after the leave has started).

• Clause 38 - compassionate leave: provides for compassionate leave; however is silent is relation to the entitlement when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

• Clause 15.7 - withholding monies at termination: provides 'If an Employee fails to give the notice specified in sub-clause 15.6 the Employer has the right to withhold monies due to the Employee to a maximum amount equal to the amount the Employee would have received under sub-clause 15.6.' Clause 15.6 of the Agreement relates to notice of termination required to be given by an Employee. This clause appears to permit the Employer to withhold monies owing to an employee under the NES (such as accrued but unused annual leave or long service leave on termination or redundancy payments). This raises the issue that cl. 67.2 may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

However, noting clause 5.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2026. The nominal expiry date of the Agreement is 30 June 2028.

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