Fair Work Act 2009

s.251 - Application for a variation of a single interest employer authorisation

North Fitzroy Child Care Co-Operative Limited, Gumnuts Early Learning Centre Inc, Deep Creek Child Care Centre Inc

Application to vary single interest employer authorisation in B2024/1578

• [1] North Fitzroy Child Care Co-Operative Limited, Gumnuts Early Learning Centre Inc and Deep Creek Child Care Centre Inc (applicant employers) have applied to the Commission under s.251 of the Fair Work Act 2009 (Act) to vary a single interest employer authorisation. The Authorisation[1] was issued by the Commission on 15 January 2025 under s.248 of the Act and included some 55 employers who operate community childcare facilities in Victoria and are represented by the Community Child Care Association (CCCA).[2]

• [2] The application sought the following:

• Remove Deep Creek Child Care Centre Inc (Deep Creek Centre) from the Authorisation - under s.251(1); and

• Add North Fitzroy Child Care Co-Operative Limited and Gumnuts Early Learning Centre Inc (new employers) to the Authorisation - under s.251(3) and (4).

• [3] An important part of the context for this application is that the Commonwealth Government has made available grant funding for an Early Childhood Education and Care Worker Retention Payment (EWRP). The objective of the EWRP is to boost the wages of employees in the early childhood education and care (ECEC) sector. It is necessary as part of the EWRP arrangements that each employer has an eligible workplace instrument, such as an approved enterprise agreement, in place to meet the funding requirements. One such instrument is the Early Childhood Education and Care Multi-Employer Agreement 2024-2026[3] (ECEC Agreement) and the parties to the Authorisation here are well advanced on negotiating a multi-employer agreement to also serve that same purpose. The parties here are negotiating an enterprise agreement to be known as the Professional Community Standard 2025 Multi-employer Agreement (proposed new agreement). The proposed new agreement is based upon an existing agreement, Professional Community Standard 2021[4] (PCS Agreement), which applies to all of the employers presently covered by the Authorisation, with the exception of the Deep Creek Centre. For reasons I will come to, the Deep Creek Centre is ultimately seeking to be covered by the ECEC Agreement.

• [4] The new employers operate community managed, not for profit early childhood education and care services located within the State of Victoria and seek to be covered by the proposed new agreement to be made under the Authorisation.

• [5] The United Workers' Union (UWU) and Australian Education Union (AEU) represent employees that are covered by the Authorisation and have supported this application.

• [6] In the lead up to the determination of the matter, I directed that the CCCA provide notice to the employers presently covered by the Authorisation that they may raise views and any concerns with this application directly with the Commission. I add that the same additional opportunity was also provided to the UWU and AEU. This notice was provided, and the Commission has not been advised of any such concerns and no party sought to be heard.

• [7] Having considered the application, today I issued an Order[5] varying the Authorisation as sought. My reasons for doing so are briefly set out below.

1. The application to remove the Deep Creek Centre

• [8] Section 251(1), (2) and (2A) of the Act provide as follows:

"251 Variation of single interest employer authorisations

(1) The following may apply to the FWC for a variation of a single interest employer authorisation to remove an employer's name from the authorisation:

(b) a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates.

(2) The FWC must vary the authorisation to remove the employer's name if:

(a) an application has been made under subsection (1); and

(b) the requirements of either subsection (2A) or (2B) are met.

(2A) The requirements of this subsection are met if the FWC is satisfied that:

(a) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and

(b) because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation."

• [9] Section 251(2B) and related provisions apply where the application is made by an employee bargaining representative and are not relevant here.

• [10] The Deep Creek Centre is eligible to make this application. In the circumstances present here, s.251(2) provides that if the requirements of ss.(2A) are met, the Commission must make the variation to remove the employer's name from the Authorisation. Those requirements are that:

• employers specified in the authorisation (existing employers) and the bargaining representatives of the employees of those employers have had an opportunity to express to the Commission their views (if any) on the application; and

• because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation. I consider that this requires the Commission to be satisfied that there is a change in circumstances from those evident at the time that the Authorisation was made.

• [11] As to the first requirement, the CCCA consulted with the existing employers and the UWU and AEU prior to making the application and communicated their view of support to the Commission. Further, the process undertaken in the lead up to the hearing confirmed a direct opportunity for all of these parties to express their views to the Commission. This meets the requirements of s.251(2A)(a) of the Act.

• [12] In relation to the changed circumstances, the Deep Creek Centre relies upon a statement provided by its Director, Nilu Sayani. As outlined earlier, the Deep Creek Centre is the only employer covered by the Authorisation that is not already subject to the PCS Agreement. The PCS Agreement already provides wages significantly in excess of the relevant modern awards that presently apply to the Deep Creek Centre and its employees. This sets the context but are not of themselves relevant changes. The factors now relied upon include the following:

• The negotiations for the proposed new agreement are now well advanced and the wages outcomes proposed builds upon rates that are already significantly higher than those being applied by the Deep Creek Centre.

• The EWRP grant guidelines require that the employers concerned must maintain a fee cap between 8 August 2024 and 7 August 2025 of 4.4%. As the centre is a not-for-profit community organisation that relies upon parental fees for its funding, this means that the Deep Creek Centre would not be able to comply with the grant guidelines and fund the agreed wages in the proposed new agreement.

• In January 2025, there has been a significant change in the staffing arrangements which has resulted in significantly higher wage costs than applied at the time of the Authorisation.

• The ECEC Agreement has been approved by the Commission and the Deep Creek Centre is committed to joining that instrument, making an application for the EWRP and providing the increased wages to its employees via that mechanism.

• There has been a change in the management committee of the Deep Creek Centre and the new committee has come to the view that the service would not be viable if it remains part of the Authorisation and were to be covered by the proposed agreement. I will return to this aspect shortly.

• [13] I am satisfied that there are relevant changes and that in these circumstances it is no longer appropriate for the employer to be specified in the Authorisation. My reasons for that conclusion are:

• The employer concerned is in a different position than all of the existing employers and would not be advancing the proposed agreement to its employees. This would mean that the proposed agreement would not be made with the Deep Creek Centre being covered.

• The employer concerned has committed to making an agreement with its employees to vary the ECEC Agreement to become a party to that instrument. This will significantly benefit both the employees and the employer given the increased wages involved and the EWRP payments available.

• This outcome is not opposed by the existing employers and is supported by the employee bargaining representatives concerned.

• [14] As a result, I was obliged to make an order removing the Deep Creek Centre from the Authorisation.

• [15] I would observe that each application of this kind must be considered on its own merits applying the relevant statutory requirements and considerations to the circumstances found by the Commission. I have done so here and there are particular elements of this application discussed above that have been important in providing a basis for the outcome determined. Further, a mere change in management or its view about the employer's involvement in a multi-employer bargaining process, or a different view about bargaining outcomes, without more, and possibly much more, is unlikely to represent a change in circumstances that would make the removal of an employer from an authorisation of this kind appropriate.

• [16] Sections 251(3), (4), and (8) and s.251(A) of the Act provide as follows:

(3) The following may apply to the FWC for a variation of a single interest employer authorisation to add the name of an employer (the new employer) that is not specified in the authorisation to the authorisation:

(i) for the proposed enterprise agreement to which the authorisation relates; and

(4) The FWC must vary the authorisation to add the new employer's name if:

(a) an application for the variation has been made; and

(i) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and

(ii) if the application was made by the new employer under paragraph (3)(a) - no person coerced, or threatened to coerce, the new employer to make the application; and

(iii) if the application was made by a bargaining representative under paragraph (3)(b) - the requirements of subsection (5) are met; and

(iv) the requirements of subsection 249(2) or (3) (which deal with franchisees and common interest employers) would continue to be met if the new employer's name were added; and

(v) if the requirements of subsection 249(3) would continue to be met if the new employer's name were added - the operations and business activities of the new employer are reasonably comparable with those of the employers specified in the authorisation.

Employers and employees that are already bargaining

(8) Despite subsection (4), the FWC may refuse to vary the authorisation if the FWC is satisfied that:

(a) the new employer is bargaining in good faith for a proposed enterprise agreement that will cover the new employer and the employees of the new employer that will be covered by the agreement, or substantially the same group of those employees; and

(b) the new employer and those employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the new employer and those employees, or substantially the same group of those employees; and

(c) on the day that the FWC will vary the authorisation, less than 9 months have passed since the most recent nominal expiry date of an agreement referred to in paragraph (b).

251A Restriction on variation of single interest employer authorisation

Despite subsection 251(4), the FWC must not vary a single interest employer authorisation if, as a result of the variation, the proposed enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work."

• [17] I observe that subsections (4A), (5), (5A), (6) and (7) apply where the application is made by an employee bargaining representative and are not relevant here.

• [18] I briefly confirm the basis of my satisfaction with the relevant requirements below.

• [19] The new employers are not presently specified in the Authorisation and have made a valid application to vary. This meets the requirements of s.251(3) and s.251(4)(a) of the Act.

• [20] The existing employers and the employee bargaining representatives have had an opportunity to express their views to the Commission. This meets the requirements of s.251(4)(b)(i) of the Act.

• [21] I am satisfied that no person has coerced or threatened to coerce the new employers to make the application. This meets the requirements of s.251(4)(b)(ii) of the Act.

• [22] The balance of the requirements in s.251(4)(b) call up certain statutory requirements for the making of a single interest employer authorisation in s.249 of the Act. The immediately relevant provisions are:

(3) The requirements of this subsection are met if:

(a) the employers have clearly identifiable common interests; and

(b) it is not contrary to the public interest to make the authorisation.

(3A) For the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises."

• [23] As to the existence of clearly identifiable common interests, the material before the Commission confirms that the new employers and the existing employers have these common interests. The factors that support this finding include:

• The new employers and existing employers operate early childhood education and care services located within the State of Victoria and this location impacts upon various interests relevant to bargaining.

• The new employers and existing employers are governed by a common regulatory regime, the National Quality Framework.

• The new employers and existing employers are eligible to apply for the EWRP grant.

• As Victorian services, they are all eligible to apply for and receive Victorian Government "Best Start, Best Life" funding which reduces the cost of accessing three- and four year-old kindergarten programs provided in long day care services.

• As community managed, not for profit services, they all operate to meet the needs of their local community. Services of this nature often collaborate through local networks to support operations, management practices and programming.

• The new employers and existing employers share common underpinning terms and conditions of employment including the modern awards which apply.

• [24] I am satisfied that these are clearly identifiable common interests that are relevant to whether the new employers should be subject to the Authorisation and bargaining collectively with the existing employers.[6] I am also satisfied that it is not contrary to the public interest for the variation to the Authorisation to be made. The ECEC sector is a highly feminised and part-time employment sector and historically recognised as involving low paid occupations, with employees reliant on safety net industrial instruments for their minimum terms and conditions. Adding the new employers to the Authorisation is consistent with the objects of the Act[7] and nothing has been suggested or is apparent that would make the proposed variation contrary to the public interest. This meets the requirements of s.251(4)(b)(iv).

• [25] I am also satisfied that the operations and business activities of the new employers are reasonably comparable with the existing employers. This meets the requirements of s.251(4)(b)(v) of the Act.

• [26] Neither of the new employers are currently bargaining for a proposed enterprise agreement that would cover any of their relevant employees. Section 251(8) does not apply to provide a basis to refuse the variation.

• [27] The addition of the new employers to the Authorisation would not result in the proposed enterprise covering any employees in general building or construction work. This meets the requirements of s.251A of the Act.

• [28] I was satisfied that all of the requirements for making a variation to add the new employers had been met and the Commission was then obliged by the Act to also grant this aspect of the application.

• [29] Being satisfied that all of the requirements for making the variations sought to the Authorisation had been met, an order confirming the variations is being issued by the Commission in conjunction with this decision.

• [30] The existing employers are set out in Annexure A: The Applicant Employers to the Authorisation. The order varies that Annexure to confirm the different coverage of the Authorisation now determined by the Commission.

[1] PR783317.

[2] Application by Annie Dennis Children's Centre Inc. and others [2025] FWC 143.

[3] See the discussion in [2024] FWCFB 461 at [2] and [28].

[5] PR786887.

[6] See the discussion of a related provision in The Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal and Others [2024] FWCFB 253 at [399].

[7] Sections 3 and 171 of the Act. See generally Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shirs Counsil, Ararat Rural City Council [2024] FWCFB 444 at [69] to [80].

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