Application for approval of The Northern Nursery School Limited Whole Centre Enterprise Agreement 2025

[1] The Northern Nursery School Ltd (the Employer) has made an application for approval of an enterprise agreement known as the The Northern Nursery School Limited Whole Centre Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement will apply to employees who are covered by either the Education Services (Teachers) Award 2020 (Teachers Award), the Children's Services Award 2010 (Children's Services Award) or the Clerks - Private Sector Award 2020 (Clerks Award).

[3] The Agreement is silent on a workplace delegates' rights term apart from clause 37 which briefly deals with 'Union Representatives'. Pursuant to s.205A(2) of the Act, the workplace delegates' term from the Teachers Award, Children's Services Award and the Clerks Award (which are in identical terms) is taken to be a term of the Agreement. A copy of the workplace delegates' rights term can be found at Schedule 2.

[4] Clause 40 of the Agreement provides that representation is only permitted in the 'Initial Resolution - Workplace Level' stage, inconsistent with s.186(6) of the Act.

Inconsistency with the National Employment Standards (NES)

[5] The Agreement does not contain an NES precedence term. The Commission raised the following provisions with the Employer which may be inconsistent with the NES:

1. Clause 23.5(c) provides that to qualify for personal leave an employee may be required to provide evidence or a medical certificate which satisfies the Employer that they were sick. Section 107(3) of the Act only requires evidence that would satisfy a reasonable person.

2. Clause 24.1(b)(ii) provides that an employee shall, if required, establish, by production of documentation acceptable to the employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee. Section 107(3) of the Act only requires evidence that would satisfy a reasonable person.

3. Clause 24.3 provides for compassionate leave however it is silent about the entitlement to leave where the employee, their partner or spouse has a miscarriage or gives birth to a stillborn child, inconsistent with s.104 of the Act.

4. Clause 31.2 provides that nothing in this clause shall affect the right of the Employer to dismiss summarily any Employee for incompetence, misrepresentation, neglect of duty or other misconduct. This appears to go further than the conduct contemplated by s.123 of the Act and is inconsistent with the definition of serious misconduct at Reg 1.07 of the Fair Work Regulations 2009.

[6] The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Awards:

1. Clause 11 of the Agreement provides that a part-time Employee who agrees to work in excess of their normal shifts on any day will be paid at ordinary time for up to eight hours and shall be paid at the rate of time and a half for the first two hours and double time thereafter. Clause 10 of the Clerks Award provides that all time worked in excess of agreed hours, or varied by agreement, is overtime. Depending on how much overtime these employees are working, rates may not be high enough to compensate. Based upon submissions provided by the Employer, I am satisfied that it is reasonably foreseeable for the purpose of s.193(6) of the Act that the Employer will not employ employees on a part-time basis to perform work that would be otherwise covered by the Clerks Award.

2. Clause 18 of the Agreement provides that full-time contract and non-contract Employees who are required by the Employer to work in excess of 38 hours per week (excluding the one hour fortnightly staff meeting) shall be paid at the rate of time and a half for the first two hours and double time thereafter. Clause 21 of the Clerks Award provides that time in excess of ordinary hours, in excess of 10 hours per day, outside the spread of ordinary hours, or on an RDO is overtime. As such, it appears the Agreement trigger may be slightly harsher than the Award. Rates may not be high enough to compensate should employees be working large amounts of hours which would attract overtime under the Award but not the Agreement. Based upon submissions provided by the Employer, I am satisfied that it is reasonably foreseeable for the purpose of s.193(6) of the Act that employees covered by the Agreement will not perform overtime on a regular basis.

3. The Agreement is silent on shift, weekend penalties and public holiday penalties. Based upon submissions provided by the Employer, I am satisfied that it is reasonably foreseeable for the purpose of s.193(6) of the Act that employees covered by the Agreement will not work on weekends, public holidays and at other times that would attract shift penalties under the relevant Award.

[7] The Employer provided written submissions and undertakings to address the above issues. A copy of the undertakings is attached in Schedule 3 of the Agreement. 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.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2026. The nominal expiry date of the Agreement is 31 March 2028.

Printed by authority of the Commonwealth Government Printer