YORKE PENINSULA LEARNING AND CARE - EARLY CHILDHOOD EDUCATION AND CARE WORKER RETENTION PAYMENT - ENTERPRISE AGREEMENT 2024 - 2026

Application for approval of the Yorke Peninsula Learning and Care - Early Childhood Education and Care Worker Retention Payment - Enterprise Agreement 2024 - 2026

[1] An application has been made for approval of an enterprise agreement known as the Yorke Peninsula Learning and Care - Early Childhood Education and Care Worker Retention Payment - Enterprise Agreement 2024 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Yorke Peninsula Learning And Care Pty Ltd Trading AS Yorke Peninsula Learning And Care (Yorke). The Agreement is a single enterprise agreement.

[2] Several matters were raised with Yorke concerning its application for the approval of the Agreement and I have taken into account further submissions provided in response in my consideration of this application.

[3] The Agreement is similar to an agreement contemplated by a Full Bench of the Commission in Application by United Workers Union[1] where approval was sought for an agreement designed to facilitate the on-payment of the Commonwealth Government's Early Childhood Education and Care Worker Retention Payment (EWRP) to employees. In its decision, the Full Bench noted that[2]:

"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."

[4] The Full Bench also noted that the obligation to on-pay the EWRP to employees only arose if the employer receives EWRP payments from the Commonwealth, and until then rates of pay in the Agreement were the same as those in the Awards. It was therefore not clear how at test time employees could be considered better off than if they were paid under the Awards, taking into account in particular that the Agreement does not actually require employers to apply for a EWRP grant.

[5] A similar issue arises in respect to the Agreement before me. For the Full Bench[3], and in other decisions of the Commission dealing with comparable subject matter[4], 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"

[6] Yorke has provided a modified version of these undertakings, which are attached. These undertakings:

1. are modified to reflect the fact that Yorke has already made the appropriate application to the Commonwealth for the EWRP grant.

2. Provide that any payment received by Yorke from the EWRP funding will be paid to the employees covered by the Agreement with the effective start date of 2 December 2024

3. Provide that Yorke shall commence paying the EWRP to its employees from the date it receives payment for the EWRP from the Commonwealth and if it applies for the Grant before or on 30 June 2025 the EWRP shall be paid retrospectively to 2 December 2024, and the Yorke 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.

[7] I note further that in this matter the Agreement incorporates by reference the entirety of the relevant Awards and its conditions are not inferior to the conditions provided for in those Awards in any respect.

[8] I intend to adopt the reasoning of the Full Bench in Application by United Workers Union and on the basis of the undertaking provided by Yorke, consider that the agreement meets the requirements of s 186(2)(d) of the Act.

[9] The Agreement does not contain a workplace delegates rights term, Pursuant to s 205A(2) of the Act, the workplace delegates' rights term prescribed at clause 7A of the Children's Services Award 2010 is taken to be a term of the Agreement.

[10] Taking into account the further submissions made in support of the application, the undertakings provided and the considerations outlined 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.

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

[1] [2024] FWCFB 461

[4] Nest Employee Services Pty Ltd T/A Nido Early School and Others [2025] FWCA 282 [50]

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