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[10]
(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.
[5] The application has been made by Step Above Education Pty Ltd (the relevant employer) who is covered by the ECEC Agreement.
[6] On 16 September 2025, the relevant employer filed an application pursuant to s.216AA with the Commission to vary the ECEC Agreement to add itself as one of the employers covered by the ECEC Agreement.[3] The relevant employer advised that its trading name is Eagleby Central Childcare. On 30 September 2025, the Commission made a decision (the September 2025 variations decision)[4], approving the relevant employer's variation application and varying the ECEC Agreement to add it as an employer covered by the agreement by reference to the trading name 'Eagleby Central Childcare'.
[7] On 29 September 2025, the relevant employer filed a further application pursuant to s.216AA with the Commission to vary the ECEC Agreement to add itself as one of the employers covered by the ECEC Agreement.[5] In this application, the relevant employer advised that its trading name is Rochedale Central Childcare. This application was not considered in the September 2025 variations decision.
[8] Based upon the two applications filed by the relevant employer pursuant to s.216AA, it appears that as at 30 September 2025, the relevant employer operated two childcare centres, called Eagleby Central Childcare and Rochedale Central Childcare respectively. On 3 September 2025, the relevant employer requested the affected employees working at Eagleby Central Childcare to approve the proposed variation by voting for it. On 19 September 2025 the relevant employer requested the affected employees working at Rochedale Central Childcare to approve the proposed variation by voting for it. The Commission became aware of these matters in relation to Rochedale Central Childcare after issuing the September 2025 variations decision.
[9] With respect to an application pursuant to s.216AA, the term 'affected employees' is defined in s.12 of the FW Act as 'an employee employed by the employer at the time the variation is made who will be covered by the agreement if the variation is approved (or made) by the FWC'. As such, all employees of the relevant employer were covered by the ECEC Agreement when the Commission approved the variation application made on 16 September 2025 in the September 2025 variations decision. However, the application by the relevant employer that was considered in the September 2025 variations decision referred only to the ballot of employees who worked at Eagleby Central Childcare. As these employees are some, but not all, of the 'affected employees' within the meaning of s.12, this gives rise to an issue as to whether the vote was conducted in accordance with s.216A(2) of the FW Act and whether the variation was made in accordance with s.216A(4). Section 216A(2) provides that the employer may request the affected employees to approve the proposed variation by voting for it and s.216A(4) provides that the variation is made when a majority of the affected employees who cast a valid vote approve the variation.
[10] I have considered the two declarations which were filed with respect to the applications made by the affected employer pursuant to s.216AA and am satisfied that the employer requested the affected employees to approve the proposed variation by voting for it on 3 and 19 September 2025, and that a majority of the affected employees who cast a valid vote approved the variation when the two ballots are considered both separately and together. In the circumstances, I am satisfied that the variation was made prior to the date that the Commission issued the September 2025 variations decision and that the relevant employer met the requirements of ss.216A and 216AA at the time that decision was issued. To the extent that the applications as originally made and/or the voting process undertaken by the relevant employer contained minor errors or omissions, I have waived the irregularities.
[11] As it was not necessary for the relevant employer to file two separate applications, it has withdrawn the second s.216AA application. In the application before me, the relevant employer seeks to add 'Rochedale Central Childcare' as its second trading name to the ECEC Agreement.
[12] The application is made according to the Act, appropriate grounds have been provided, the UWU consents to the variation and the variation is not opposed by any of the Unions.
[13] I am satisfied that the application should be granted and the ECEC Agreement is amended accordingly.
[14] The variation is set out in Annexure A to this Decision.
[15] It is appropriate that the variation operate from the date that the relevant employer became covered by the ECEC Agreement. The variation will operate from
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