Application for approval of The Tree House Enterprise Agreement 2025

[1] An application has been made for approval of an enterprise agreement known as Tree House Enterprise Agreement 2025 (the Tree House Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Revesby Workers' Club T/A The Tree House Early Childhood Centre (Revesby). The Tree House Agreement is a single enterprise agreement.

[2] To some extent, the Tree House Agreement is designed to enable Revesby to access a Commonwealth Government grants program called the Early Childhood Education and Care (ECEC) Worker Retention Payment Grant (EWRP). The purpose of the EWRP is assist employers in the early childhood and care sector to increase employee wage rates.

[3] To qualify for the EWRP, employers must, among other things, engage employees through a "workplace instrument" that meets the conditions of the grants program. The term "workplace instrument" as it is referred to in the program has the meaning given by s 12 of the Act and includes a single-enterprise agreement or a multi-enterprise agreement. The purpose of this requirement is, evidently, to ensure there is a mechanism by which the grant is used for the purpose of increasing employees' wage rates.

[4] The grants program includes provisions by which if an application for a grant is made before a particular cut-off date, the grant will allow for pay increases to be "back-dated" to 2 December 2024. The cut-off date was originally 30 June 2025 but was extended by the Commonwealth to 30 September 2025. The Commonwealth Government's Department of Education web-site says:

"To have been eligible for backdating, providers needed to:

• Meet the eligibility criteria from 2 December 2024"[1]

[5] The Commission has dealt with applications for the approval of enterprise agreements designed to facilitate the EWRP on several occasions. In Application by United Workers Union[2] a Full Bench of the Commission considered such an agreement, and observed that, in respect of that agreement:

"Clause 11 of the ECEC Agreement facilitates the on-payment of the EWRP to employees. Employers are positively required to pay the EWRP to their employees (clause 11.4) from the date the employer receives payment from the Commonwealth Government (clause 11.8). The EWRP forms part of the employee's ordinary hourly rate of pay and must be paid for all purposes under the ECEC Agreement (clause 11.9). Clauses 11.11 and 11.12 address the limited circumstances in which EWRP payments might cease."

[6] The Full Bench also noted that the obligation to on-pay the EWRP to employees only arose if the employer received EWRP payments from the Commonwealth, and until then rates of pay in the agreement were the same as those in the relevant modern Awards[3].

[7] It was therefore not clear how employees covered by the agreement could be considered better off than if they were paid under the Awards, taking into account that the agreement did not actually require employers to apply for a EWRP grant and further, that employees' rates of pay were set at the Award level at test time - not at a rate "better" than the Award rate - until such time as the EWRP had been applied for and granted.

[8] The Tree House Agreement is proposed to work in a similar way. Schedule D of the Agreement provides a Wages Schedule. It provides for wage rates "at the commencement of the Agreement". The wage rates are superior than rates provided for in respect to early childhood teachers, who would otherwise be covered by the Educational Services (Teachers) Award 2010, but are largely equivalent to, not better, than the corresponding rates in the Children's Services Award 2020.

[9] Clause 4.17(d)(ii) of the agreement appears to define the "Payment Date" for the purposes of the agreement. It says that the EWRP will be paid "from the date the Employer receives payment for the EWRP from the Commonwealth".

[10] Clause 4.17(c) of the Agreement provides that the "first increase" is payable "from the Payment Date".

[11] For the Full Bench in the decision referred to above[4], and in other decisions of the Commission dealing with comparable subject matter[5], undertakings in similar terms to the following have been considered adequate to deal with this issue:

"(a) The employers will make the appropriate application to the Commonwealth for funding of the Early Childhood Education and Care Worker Retention Grant by no later than 2 weeks after the date of the variation to add them to the ECEC Agreement comes into operation

(b) That any payment received by the employers from the EWRP funding will be paid to the employees covered by the Agreement with the effective start date of 2 December 2024"

[12] An application for approval of The Tree House Agreement was made on 15 October 2025. The agreement was made on 7 October 2025. I was therefore concerned that the circumstances in respect of this application are different from those considered by the Commission previously, because perhaps, Revesby is not eligible for any EWRP grant it receives to include provision for "back-dating".

[13] In response to the concerns that I expressed in relation to the application, Revesby filed an Outline of Preliminary Submissions and a Witness Statement made by Ms Sharyn Buhagiar, Revesby's Chief People Officer.

[14] I was also assisted by brief submissions filed by bargaining representatives for the agreement - the United Workers' Union (UWU) and the Independent Education Union of Australia (IEU).

[15] Ms Buhagiar said that she arranged for Revesby to make an application for the EWRP grant on 27 June 2025. She also said that she spoke to a representative from the Commonwealth Department of Education on 18 August 2025 who told her that as the application had been lodged prior to 30 June 2025 (the "cut-off date" at that time), "if everything gets approved with your EA, and it has the required clauses, you will get backpay for staff and for the entitlements". A copy of the Application was provided, containing relevant reference and customer numbers, indicating it was indeed made on 27 June 2025. Ms Buhagiar said she has spoken to the same person from the Department on several further occasions, including on 28 October 2025, and received similar assurances.

[16] The UWU said it did not disagree with the submissions made by Revesby, and that there are additional terms and conditions under the Tree House Agreement which are more beneficial than the Award, as outlined by Revesby, and as such, the approval of the Agreement will mean that employees are, in certain respects, better off than the Award

[17] The IEU said it supports the approval of the Tree House Agreement and the submissions provided by both Revesby and UWU. It said that while some of the rates of pay for children's services employees are aligned with the Award, the agreement as a whole delivers a range of improvements that include enhanced conditions and entitlements which, taken together, leave employees better off than they would be under the Award alone. It also said that Revesby's submissions are consistent with its understanding that providing an application for the EWRP was made prior to 30 September 2025, upon approval of the application (even if such approval is given after 30 September 2025), an employer will be entitled to receive grant funding backdated to 2 December 2024.

[18] I consider that the circumstances before me in respect to Revesby's application for approval of the Tree House Agreement are the same as those contemplated by the Commission in previous decisions of this nature - that is - that an application for EWRP has been made in circumstances where if it is granted, employees will receive "back pay" such that their rates of pay will have been retrospectively corrected to be at a level significantly above the relevant modern Award as at test time, and indeed back to 2 December 2024. I therefore intend to adopt the approach taken by the Commission in previous decisions dealing with similar applications.

[19] Consistent with the approach taken by the Commission in previous matters of this nature, Revesby has provided undertakings, a copy of which are attached. These undertakings:

1. Reflect the fact that Revesby has already made the appropriate application to the Commonwealth for the EWRP grant

2. Provide that any payment received by Revesby from the EWRP funding will be paid to the employees covered by the Agreement

3. Provide that Revesby shall commence paying the EWRP to its employees from the date it receives payment for the EWRP from the Commonwealth and if it receives a backdated grant, the EWRP shall be paid retrospectively to 2 December 2024, and Revesby shall 'back pay' employees the EWRP accordingly.

4. Provide that the EWRP will form part of employees' ordinary hourly rate of pay and be paid for all purposes of this Agreement.

[20] 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.

Interaction with the National Employment Standards

[21] Clause 1.8 of the Agreement provides that the National Employment Standards (NES) or any relevant amendments to the Act shall prevail over the Agreement to the extent to which, in a particular respect should the NES or any such amendment of the Act provides a more favourable outcome for an employee (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

[22] Clause 6.1(c) of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees. However, when read in conjunction with the NES precedence clause 34.4 will have no effect to the extent of any inconsistency with s 115(3) of the Act.

[23] In response to the concerns raised by the Commission in relation to this application, submissions were made about two further matters. I do not consider it necessary to make findings or determine these matters but note them for completeness.

[24] First, Revesby submitted that even without the pay increases that will arise from the EWRP (including retrospectively), the Commission can be satisfied that each employee, and reasonably foreseeable employee covered by the Tree House Agreement will be better off if covered by the agreement than they would be if covered by the Modern Awards. It made reference to several beneficial entitlements that would apply to employees under the Tree House Agreement that do not apply under the relevant Award, including a longer minimum shift entitlement for part time employees, significantly higher severance entitlements for employers above 45 years, a paid meal break for employees working more than five hours and an entitlement to discounted childcare fees. It also confirmed that not all of the rates of pay provided for in the agreement are initially set at Award levels, and that some are already above Award levels. I had already noted this to be the case in respect to early childhood teachers who would otherwise be covered by the terms of the Educational Services (Teachers) Award 2010.

[25] Second, both the UWU and the IEU submitted that approval of the Tree House Agreement would not be contrary to the public interest. UWU submitted that the approval of the agreement provides the "only, and best, opportunity for employees to receive backpay as part of the ECEC Worker Retention Payment ('EWRP')", and that in "the absence of this Agreement, there appears to be no opportunity for staff to be eligible for EWRP backpay".

[26] This submission is no doubt based on s 189 of the Act, which provides that if the only reason the Commission is not required to approve and agreement is because it is not satisfied the agreement passes the BOOT test, it may approve the agreement if it is satisfied that because of exceptional circumstances, approval of the agreement is not contrary to the public interest.

[27] On the basis of the undertakings provided, including with respect to back-pay, I am satisfied that employees and reasonably foreseeable employees covered by the Tree House Agreement would be better off covered by the agreement than they would be if covered by the relevant Modern Award. It is therefore not necessary for me to determine whether the BOOT test was otherwise met had back-pay not been available or the undertakings not been given. The submissions as to the beneficial entitlements provided for in the Tree House Agreement do however fortify my view that employees will be better off.

[28] As I am so satisfied, it is not necessary for me to consider whether, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.

[29] On the basis of the matters referred to above and the undertakings provided, 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.

[30] The UWU and the IEU, both being a bargaining representative for the Tree House Agreement, have given notice under s.183 of the Act that they wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the UWU and the IEU

[31] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[1] Early childhood wages - Department of Education, Australian Government

[2] [2024] FWCFB 461 [27]

[3] Children's Services Award 2020; Educational Services (Teachers) Award 2010

[4] [2024] FWCFB 461 [30]

[5] Nest Employee Services Pty Ltd T/A Nido Early School and Others [2025] FWCA 282 [50]; Application by Kidzpace Pty Ltd Atf Kidzspace Management Unit Trust Trading AS Little Legends ELC [2025] FWCA 1497; Application by Yorke Peninsula Learning and Care Pty Ltd Trading As Yorke Peninsula Learning and Care [2025] FWCA 1483

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