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austlii:cth/FWCA/2026/769
General information, not legal advice.
FWCA
2026-03-26
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 26 March 2026.
s.185 - Enterprise agreement
Caboolture Apex Kindergarten & Preschool Early Childhood Education Inc t/a Community Management Solutions
CABOOLTURE APEX KINDERGARTEN PRE-SCHOOL EARLY CHILDHOOD EDUCATION COLLECTIVE EDUCATION ENTERPRISE AGREEMENT 2025
Application for approval of the Caboolture Apex Kindergarten Pre-School Early Childhood Education Collective Education Enterprise Agreement 2025
[1] This decision deals with an application made for approval of an enterprise agreement known as the Caboolture Apex Kindergarten Pre-School Early Childhood Education Collective Education Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Caboolture Apex Kindergarten & Preschool Early Childhood Education Inc t/a Community Management Solutions (the Applicant). The Agreement is a single enterprise agreement.
[2] The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]
[3] Correspondence was sent to the Employer by my Chambers raising a concern that the Agreement does not provide for shift work arrangements or payments. The Employer responded on 24 March 2026 advising that no employees are engaged to perform shiftwork. The Independent Education Union of Australia - Queensland and Northern Territory Branch (IEU - QNT) who were the default bargaining representative for the Agreement, supported the Employer's submissions. I am consequently satisfied that per s.193A(6A) of the Act, shiftwork is not reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test (BOOT). I note that should this change that pursuant to s.227A of the Act, application may be made for the future reconsideration of whether the agreement passes the BOOT during the life of the Agreement.
[4] The Agreement does not contain a delegates' rights term that is no less favourable in all respects, than the modern award, pursuant to s.205A, and on that basis the term in the relevant modern awards will apply and the delegates' rights term in the Agreement at clause 1.12 will have no effect.
[5] On the basis of the material contained in the application and accompanying declarations, having regard to the Statement of Principles,[2] I am satisfied that each requirement of ss.186, 187 and 188 as is relevant to this application for approval has been met.
[6] The IEU - QNT lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the IEU-QNT.
[7] The Agreement is approved and will operate in accordance with s.54 of the Act from 2 April 2026. The nominal expiry date of the Agreement is 25 March 2030.
[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318 [117].
[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.
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