[2023] FWCFB 176
The attached document replaces the document previously issued with the above code on 27
September 2023.
‘Authorisation’ replaces ‘application’ in the first sentence of paragraph [1].
Edrea Venal
Associate to Justice Hatcher, President.
29 April 2024
1
Fair Work Act 2009
s.242—Supported bargaining authorisation
Application by United Workers’ Union, Australian Education Union and
Independent Education Union of Australia
(B2023/538)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
DEPUTY PRESIDENT HAMPTON
SYDNEY, 27 SEPTEMBER 2023
Application for a supported bargaining authorisation – early childhood education and care
sector.
Introduction
[1] The United Workers’ Union (UWU), the Australian Education Union (AEU) and the
Independent Education Union of Australia (IEU) have jointly applied for a supported
bargaining authorisation pursuant to s 242(1) of the Fair Work Act 2009 (Cth) (FW Act). The
application, as amended, specifies a total of 64 employers operating in the early childhood
education and care (ECEC) sector who will be covered by the proposed multi-enterprise
agreement to which the authorisation sought relates. These employers are set out in Annexure
A to this decision. The application also specifies that the employees who will be covered by the
proposed multi-enterprise agreement are those employed by the specified employers who
perform the following types of work in the ECEC sector:
(1) Work covered by the Children’s Services Award 2010 (CS Award) or the
Educational Services (Teachers) Award 2020 (EST Award) occurring in a long
day care setting, but not work performed in the following settings: adjunct care, a
stand-alone preschool or a kindergarten, occasional care, out of school hours care,
vacation care, mobile centres, or early childhood intervention programs, and not
work covered by an enterprise agreement that has not reached its nominal expiry
date, including:
• Bermagui Pre-School Co-Operative Society Ltd Teachers’ Agreement 2020;
• Gowrie Victoria Early Childhood Teachers Enterprise Agreement 2022;
• Victorian Early Childhood Teachers and Educators Agreement 2020;
• Victorian Early Childhood Agreement 2021.
(2) Work performed in the ECEC sector in a long day care setting not otherwise
covered by the CS Award or the EST Award, including that of a qualified chef or
cook.
[2023] FWCFB 176
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb176.pdf
[2023] FWCFB 176
2
[2] There is no dispute that the employers specified in the application are all ‘national
system employers’ within the meaning of s 14 of the FW Act. The employers fall into three
categories. Employers numbered 1-41 in Annexure A (ACA employers) are represented by the
Australian Childcare Alliance (ACA), and these employers have each nominated Mr Nigel
Ward (Director of Australian Business Lawyers and Advisors) and Mr Paul Mondo (President
of the ACA) as their bargaining representatives for the proposed agreement. Employers
numbered 42-63 have appointed either Community Early Learning Australia Limited (CELA)
or the Community Child Care Association (CCCA) to act as their bargaining representative,
and are jointly represented by Ms Laura Stevens, the Director, Policy and Strategy of CELA,
in this proceeding. Finally, G8 Education Limited (G8) represents itself in this proceeding and
as bargaining representative. All of the specified employers support the making of the
authorisation sought by the applicants. No employee of these employers has appeared in the
proceeding to oppose the making of the authorisation.
[3] Because this is the first application for a supported bargaining authorisation, we have
permitted the Australian Chamber of Commerce and Industry (ACCI), the Australian Industry
Group (Ai Group) and the Australian Council of Trade Unions (ACTU) to make submissions
in the matter concerning the proper construction and application of the relevant provisions of
the FW Act. None of these parties sought to make a submission that the authorisation sought
by the applicants should not, or could not, be made.
Statutory framework
[4] The FW Act has, since its enactment, contained a regime for the making, and approval
by the Commission, of enterprise agreements. At all times during the operation of the FW Act,
subsection (f) of s 3 has provided that one of the identified means of achieving the FW Act’s
object ‘to provide a balanced framework for cooperative and productive workplace relations
that promotes national economic prosperity and social inclusion for all Australians’ is by
‘achieving productivity and fairness through an emphasis on enterprise-level collective
bargaining underpinned by simple good faith bargaining obligations and clear rules
governing industrial action’. The entire scheme for enterprise agreements is contained in Part
2-4. The object of the Part in s 171 is:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good
faith, particularly at the enterprise level, for enterprise agreements that deliver
productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise
agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise agreements are
dealt with without delay.
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[5] Prior to 6 June 2023, Division 9 of Part 4-2 provided for a ‘low-paid bargaining’ stream
for the making of multi-enterprise agreements. Section 169, which sets out a ‘guide’ to Part 4-2,
provided in relation to the ‘low-paid bargaining’ stream:
Division 9 provides for the making of low-paid authorisations in relation to proposed
multi-enterprise agreements. The effect of such an authorisation is that specified employers are
subject to certain rules that would not otherwise apply (for example, bargaining orders that
would not usually be available for multi-enterprise agreements will be available). It also permits
the FWC to assist the bargaining representatives for such agreements.
[6] Former s 241 then set out the objects of the then Division 9 as follows:
241 Objects of this Division
The objects of this Division are:
(a) to assist and encourage low-paid employees and their employers, who have not
historically had the benefits of collective bargaining, to make an enterprise agreement
that meets their needs; and
(b) to assist low-paid employees and their employers to identify improvements to
productivity and service delivery through bargaining for an enterprise agreement that
covers 2 or more employers, while taking into account the specific needs of individual
enterprises; and
(c) to address constraints on the ability of low-paid employees and their employers to bargain
at the enterprise level, including constraints relating to a lack of skills, resources,
bargaining strength or previous bargaining experience; and
(d) to enable the FWC to provide assistance to low-paid employees and their employers to
facilitate bargaining for enterprise agreements. …
[7] Section 242 provided for the making of applications for ‘low-paid authorisations’, and
s 243 set out when the Commission was required to make a low-paid authorisation as follows:
243 When the FWC must make a low-paid authorisation
Low-paid authorisation
(1) The FWC must make a low-paid authorisation in relation to a proposed multi-enterprise
agreement if:
(a) an application for the authorisation has been made; and
(b) the FWC is satisfied that it is in the public interest to make the authorisation, taking
into account the matters specified in subsections (2) and (3).
FWC must take into account historical and current matters relating to collective bargaining
(2) In deciding whether or not to make the authorisation, the FWC must take into account the
following:
[2023] FWCFB 176
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(a) whether granting the authorisation would assist low-paid employees who have not
had access to collective bargaining or who face substantial difficulty bargaining at
the enterprise level;
(b) the history of bargaining in the industry in which the employees who will be
covered by the agreement work;
(c) the relative bargaining strength of the employers and employees who will be
covered by the agreement;
(d) the current terms and conditions of employment of the employees who will be
covered by the agreement, as compared to relevant industry and community
standards;
(e) the degree of commonality in the nature of the enterprises to which the agreement
relates, and the terms and conditions of employment in those enterprises.
FWC must take into account matters relating to the likely success of collective bargaining
(3) In deciding whether or not to make the authorisation, the FWC must also take into account
the following:
(a) whether granting the authorisation would assist in identifying improvements to
productivity and service delivery at the enterprises to which the agreement relates;
(b) the extent to which the likely number of bargaining representatives for the
agreement would be consistent with a manageable collective bargaining process;
(c) the views of the employers and employees who will be covered by the agreement;
(d) the extent to which the terms and conditions of employment of the employees who
will be covered by the agreement is controlled, directed or influenced by a person
other than the employer, or employers, that will be covered by the agreement;
(e) the extent to which the applicant for the authorisation is prepared to consider and
respond reasonably to claims, or responses to claims, that may be made by a
particular employer named in the application, if that employer later proposes to
bargain for an agreement that:
(i) would cover that employer; and
(ii) would not cover the other employers specified in the application.
. . .
[8] Section 244 made provision for the variation of low-paid authorisations to remove or
add the names of employers, and s 245 provided that the Commission was taken to have varied
a low-paid bargaining authorisation to remove an employer’s name when an enterprise
agreement or a workplace determination that covers the employer comes into operation. Section
246 empowered the Commission, on its own initiative, to provide assistance to the bargaining
representatives for a proposed multi-enterprise agreement where a low-paid authorisation was
in operation. Such assistance was that which the Commission considered appropriate to
facilitate bargaining for the agreement and which it could provide if it were dealing with a
dispute (s 246(2)), but the Commission was not authorised to arbitrate. In addition to the
Commission’s general procedural powers under Subdivision B of Division 3 of Part 5-1 of the
FW Act, s 246(3) authorised the Commission to direct a person other than an employer specified
in the authorisation to attend a conference at a specified time and place if the FWC was satisfied
that the person exercised such a degree of control over the terms and conditions of
the employees who would be covered by the agreement that the participation of the person in
bargaining was necessary for the agreement to be made.
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[9] The FW Act was amended by the Fair Work Legislation Amendment (Secure Jobs,
Better Pay) Act 2022 (Cth) (SJBP Act), effective from 6 June 2023, to introduce (among other
things) a new ‘supported bargaining stream’ for multi-enterprise agreements in place of the
previous ‘low paid bargaining stream’. That part of the object of the FW Act in s 3(f) was not
altered, nor were the objects of Part 2-4 in s 171, but the ‘guide’ to Part 2-4 in s 169 was, in
relation to Division 9 of the Part, amended to provide:
Division 9 provides for the making of supported bargaining authorisations in relation to
proposed multi-enterprise agreements. The effect of such an authorisation is that specified
employers are subject to certain rules that would not otherwise apply (for example, bargaining
orders that would not usually be available for multi-enterprise agreements will be available). It
also permits the FWC to assist the bargaining representatives for such agreements.
[10] Division 9 of Part-2-4 is now entitled ‘Supported bargaining’. The objects of Division
9 are set out in s 241 as follows:
241 Objects of this Division
The objects of this Division are:
(a) to assist and encourage employees and their employers who require support to bargain,
and to make an enterprise agreement that meets their needs; and
(c) to address constraints on the ability of those employees and their employers to bargain at
the enterprise level, including constraints relating to a lack of skills, resources, bargaining
strength or previous bargaining experience; and
(d) to enable the FWC to provide assistance to those employees and their employers to
facilitate bargaining for enterprise agreements.1
[11] Section 242 concerns the making of applications for supported bargaining
authorisations, including requirements as to standing and content. The section provides:
242 Supported bargaining authorisations
(1) The following persons may apply to the FWC for an authorisation (a supported
bargaining authorisation) under section 243 in relation to a proposed multi-enterprise
agreement:
(a) a bargaining representative for the agreement;
(b) an employee organisation that is entitled to represent the industrial interests of an
employee in relation to work to be performed under the agreement.
Note: The effect of a supported bargaining authorisation is that the employers specified
in it are subject to certain rules in relation to the agreement that would not otherwise
apply (such as in relation to the availability of bargaining orders, see
subsection 229(2)).
(2) The application must specify:
(a) the employers that will be covered by the agreement; and
(b) the employees who will be covered by the agreement.
(3) An application under this section must not be made in relation to a proposed greenfields
agreement.
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[12] Section 243 sets out the circumstances in which the Commission is required to make a
supported bargaining authorisation:
243 When the FWC must make a supported bargaining authorisation
Supported bargaining authorisation—main case
(1) The FWC must make a supported bargaining authorisation in relation to a proposed
multi-enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the FWC is satisfied that it is appropriate for the employers and employees (which
may be some or all of the employers or employees specified in the application) that
will be covered by the agreement to bargain together, having regard to:
(i) the prevailing pay and conditions within the relevant industry or sector
(including whether low rates of pay prevail in the industry or sector); and
(ii) whether the employers have clearly identifiable common interests; and
(iii) whether the likely number of bargaining representatives for the agreement
would be consistent with a manageable collective bargaining process; and
(iv) any other matters the FWC considers appropriate; and
(c) the FWC is satisfied that at least some of the employees who will be covered by
the agreement are represented by an employee organisation.
Note: This subsection is subject to section 243A (restrictions on making supported
bargaining authorisations).
Common interests
(2) For the purposes of subparagraph (1)(b)(ii), examples of common interests that employers
may have include the following:
(a) a geographical location;
(b) the nature of the enterprises to which the agreement will relate, and the terms and
conditions of employment in those enterprises;
(c) being substantially funded, directly or indirectly, by the Commonwealth, a State or
a Territory.
Supported bargaining authorisation—declared industry etc.
(2A) The FWC must also make a supported bargaining authorisation in relation to a proposed
multi-enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the employees specified in the application are employees in an industry, occupation
or sector declared by the Minister under subsection (2B).
Note: This subsection is subject to section 243A (restrictions on making supported
bargaining authorisations).
(2B) The Minister may, by legislative instrument, declare an industry, occupation or sector, if
the Minister is satisfied that doing so is consistent with the objects of this Division set out
in section 241.
[2023] FWCFB 176
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What authorisation must specify etc.
(3) The authorisation must specify:
(a) the employers that will be covered by the agreement; and
(b) the employees who will be covered by the agreement; and
(c) any other matter prescribed by the procedural rules.
Operation of authorisation
(4) The authorisation comes into operation on the day on which it is made.
[13] Section 243 operates subject to s 243A, which specifies certain restrictions on the
making of supported bargaining authorisations. Section 243A(1) provides that the Commission
must not make such an authorisation specifying an employee who is covered by a single-
enterprise agreement that has not passed its nominal expiry date. However, this restriction
operates subject to s 243A(3), which provides that it does not apply if the Commission is
satisfied that an employer’s main intention in making the single-enterprise agreement with the
employees covered by it was to avoid being specified in a supported bargaining authorisation.
Section 243(4) provides that the Commission must not make a supported bargaining
authorisation in relation to a proposed enterprise agreement if the agreement would cover
employees in relation to ‘general building and construction work’ (as this expression is defined
in s 23B(1)).
[14] Section 244 specifies certain circumstances in which the Commission must, upon
application, vary a supported bargaining authorisation. Subsections (1)-(3) are, in substance,
the same as they were prior to the operation of the SJBP Act, while subsection (4) has been
modified and subsections (4A) and (5) added to restrict the circumstances in which an
authorisation must be varied to add an employer consistently with s 243A.
[15] Section 245 provides that the Commission is taken to have varied a supported bargaining
authorisation to remove an employer’s name when the employer and all of their employees who
are specified in the authorisation are covered by an enterprise agreement or a workplace
determination that is in operation. Section 246 is in the same terms as the provisions was prior
to the operation of the SJBP Act, save that ‘for the low-paid’ is now omitted from the title of
the section and subsection (1) has been amended to refer to a supported bargaining authorisation
rather than a low-paid authorisation.
[16] An important consequence of the making of a supported bargaining authorisation is
specified in s 172(7) as follows:
Requirement for employer specified in supported bargaining authorisation
(7) Despite any other provision of this Part, if an employer is specified in a supported
bargaining authorisation that is in operation:
(a) the only kind of enterprise agreement the employer may make with their employees
who are specified in the authorisation is a supported bargaining agreement; and
(b) the employer must not initiate bargaining, agree to bargain, or be required to
bargain with those employees for any other kind of enterprise agreement.
[17] Section 172(7) had no equivalent in the previous low-paid bargaining scheme.
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[18] After the making of a supported bargaining authorisation, a ‘supported bargaining
agreement’ (defined in s 12 to mean a multi-enterprise agreement in relation to which a
supported bargaining authorisation was in operation immediately before the agreement was
made) is made when, pursuant to s 182(2), the employees of each of the employers that will be
covered by the agreement have been asked to approve the agreement under s 181(1), those
employees have voted on whether or not to approve the agreement and a majority of the
employees of at least one of those employers who cast a valid vote have approved the
agreement. Section 184 provides that if a multi-enterprise agreement has been made, but has
not been approved by the employees of all the employers that made a voting request under
s 181(1), a bargaining representative must, prior to applying for its approval, vary the agreement
so that it is expressed to cover only each employer whose employees approved the agreement
and its employees. Subsections (3)-(5) of s 184 set out the process by which this is to be done.
[19] Subject to s 184, a supported bargaining agreement once made must be the subject of
an application to the Commission for approval pursuant to s 185(1). Under s 186(1), the
Commission must approve the agreement if the applicable requirements of ss 186 and 187 are
met, and may alternatively approve the agreement pursuant to ss 189, 190 or 191A.
General principles
[20] Before we turn directly to the application before us, it is convenient to set out some
general propositions concerning the proper construction and application of the current
provisions of Division 9 of Part 4-2. The principal contextual consideration in this respect is,
we consider, that the scheme for supported bargaining effected by the SJBP Act represents a
modification of the previous low-paid bargaining scheme, rather than a complete innovation,
with the objective of rendering the scheme more accessible and therefore more widely-used.
The historical context is that the low-paid bargaining scheme essentially failed to achieve its
legislative purpose as set out in s 241: only five applications for low-paid authorisations were
ever made in the almost 14 years that scheme was in place, only one of these was successful
(the Aged Care decision2) and the successful application did not lead to the making of a multi-
enterprise agreement. Decisions concerning applications which were not successful illustrate
the way in which the matters required to be taken into account under s 243, as it then was,
operated to constrain access to the low-paid bargaining scheme. In Australian Nursing
Federation v IPN Medical Centres Pty Ltd & Ors3 (Practice Nurses decision), the Commission
considered an application for a low-paid authorisation with respect to nurses employed by some
682 employers operating general practice clinics and medical centres. In determining, in
undertaking the required discretionary evaluation, that it was not satisfied that it would be in
the public interest to make the low-paid authorisation sought, the Commission placed weight
on its findings that:
• most of the nurses affected were not low-paid, so that the assistance that the grant
of the authorisation would provide to low-paid employees was marginal;
• the applicant union had not accessed all the rights available under the FW Act to
advance the interests of its members by way of enterprise-based negotiations;
[2023] FWCFB 176
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• multi-employer bargaining was less likely to identify improvements in
productivity and service delivery than enterprise bargaining;
• multi-employer bargaining was also likely to be cumbersome and of doubtful
manageability given the number of employers involved; and
• multi-employer bargaining, while supported by a large proportion of employees,
was strongly opposed by most employers and some employees.4
[21] These conclusions invoked the considerations in subsections (2)(a) and (b) and (3)(a),
(b) and (c) of former s 243 respectively. In respect of the conclusion that most of the nurses
affected were not ‘low-paid’, the Commission relied in part upon the analysis of that expression
in the Aged Care decision, in which the Full Bench said that ‘[w]e have no doubt that in the
context of the provisions of Division 9 the phrase is intended to be a reference to employees
who are paid at or around the award rate of pay and who are paid at the lower award
classification levels’.5 The Commission also referred6 to the 2009-107 and 2012-13 Annual
Wage Review decisions,8 in which the low-paid were identified as those earning less than a
benchmark of two-thirds of median adult ordinary-time earnings, and then continued:
[92] Counsel for IPN submits that the case before me provides an opportunity to provide clarity
on the meaning of the term by aligning the approaches adopted in the [Aged Care decision] and
Annual Wage Review decisions. IPN submits that this would result in considering low-paid
employees as those on rates between the C14 and C10 classifications in the Manufacturing
Award.
[93] The ANF submits that the term is one that should be applied in the relevant industry under
consideration, that industry is the vocation of nursing and that as practice nurses are paid less
than public sector hospital nurses, practice nurses are low-paid. It submits in the alternative that
practice nurses are low[-]paid because they are often paid at or around the award rate of pay.
[94] There are a number of problems with the ANF approach, not least of which is the
comparison made with different industries in the health sector. I consider that the term low-paid
used in the legislation is intended to have a consistent meaning, albeit one that cannot be defined
by reference to a strict cut[-]off point. The Aged Care decision and the approach in Annual
Wage reviews involve a consistent approach. In my view that is the correct approach to adopt
in this case. However the notion that the concept is a matter of degree involves an element of
imprecision which in my view must be borne in mind. I propose to adopt a broad view to the
term in the context of the evidence of pay of the employees concerned.
[22] In United Voice,9 the Commission dismissed an application for a low-paid authorisation
in relation to five security industry employers in the ACT and their employees covered by the
Security Services Industry Award 2010. The Commission followed the Aged Care decision and
the Practice Nurses decision in respect of the meaning of ‘low[-]paid’ and was satisfied that
some of the employees that would be covered by the authorisation were low-paid.10 However,
the Commission made findings that led to the conclusion that most of the required
considerations in subsections 243(2) and (3) did not weigh in favour of, or weighed against, the
grant of the authorisation sought, including that:
• there was no evidence of previous attempts to bargain at the enterprise level with
some of the employers proposed to be covered by the authorisation (subsection
(2)(a));11
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• there had been a lack of effort by the applicant to bargain with the employers at
the enterprise level (subsection (2)(b));12
• the terms and conditions of the affected employees were in most respects no less
beneficial than the minimum terms and conditions applying elsewhere and
community standards (subsection (2)(d));13
• the degree of commonality between the enterprises the subject of the application
were counterbalanced by the need to have appropriate regard to the fact that the
enterprises competed for contracts and work (subsection (2)(e);14
• there was no basis upon which it could be said that granting the authorisation
would assist in identifying improvements to productivity and service delivery
(subsection (3)(a));15
• while a not-insignificant number of employees supported the application, the
strength and level of support was not known, and the relevant employers were
opposed to becoming involved in multi-enterprise bargaining (subsection
(3)(c));16 and
• there was insufficient evidence that the government, as the dominant player in the
market, used its procurement processes to control, direct or influence the terms
and conditions of employment (subsection (3)(d)).17
[23] Ultimately the Commission concluded:
[130] Having taken into account each of the matters set out in ss 243(2) and (3) I am not satisfied
that it is in the public interest to make the authorisation sought by United Voice. Neither party
advanced any other ground on which it might be said that the public interest is enlivened so as
to compel the making of a low-paid authorisation. Although I have concluded that some of the
employees the subject of this application are low-paid a case has not been made out that the
employees have either not had access to collective bargaining or that they face substantial
difficulty bargaining at the enterprise level. For the reasons given earlier, the preponderance of
the matters of which account must be taken weigh against making the authorisation sought by
United Voice. Some of the considerations are neutral and those few that weigh in favour are not
so significant as to result in an authorisation being warranted, much less mandated, in the public
interest.
[24] The Revised Explanatory Memorandum (REM) for the Fair Work Legislation
Amendment (Secure Jobs, Better Pay) Bill 2022 (SJBP Bill) identifies in a number of instances
that an objective of the SJBP Bill is to improve access to and the use of what was then the low-
paid bargaining stream. The Outline of the SJBP Bill in the REM identifies a purpose of the
Bill as being to ‘[r]emove unnecessary limitations on access to the low-paid bargaining stream
(and rename it the supported bargaining stream) and the single-interest employer authorisation
stream; and provide enhanced access to FWC support for employees and their employers who
require assistance to bargain’. The REM’s Statement of Compatibility with Human Rights
states the following in relation to supported bargaining:
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37. Part 20 would reform the low-paid bargaining provisions in Division 9 of Part 2-4 of the
FW Act and create the supported bargaining stream. The supported bargaining stream is
intended to assist those employees and employers who may have difficulty bargaining at
the single-enterprise level. For example, those in low-paid industries such as aged care,
disability care, and early childhood education and care who may lack the necessary skills,
resources and power to bargain effectively. The supported bargaining stream will also
assist employees and employers who may face barriers to bargaining, such as employees
with a disability and First Nations employees.
38. The provisions would amend the existing low-paid bargaining process. When an
application for a supported bargaining authorisation is made, the FWC must consider
whether it is appropriate for the parties to bargain together. The FWC would consider the
prevailing pay and conditions in the relevant industry, whether employers have clearly
identifiable common interests, and whether the number of bargaining representatives
would be consistent with a manageable collective bargaining process. The proposed
supported bargaining stream is intended to be easier to access than the existing low-paid
bargaining stream.
. . .
(underlining added)
[25] The REM’s Statement of Compatibility with Human Rights further states:
109. The Bill would promote the right to work and rights in work by amending the existing
low-paid bargaining stream to assist people who face barriers to bargaining to negotiate
their terms and conditions of employment. By increasing access to the renamed supported
bargaining stream, the Bill intends to assist workers who require support to bargain. This
might include those in low paid occupations, government-funded industries, and female-
dominated sectors, as well as employees with a disability, employees who are culturally
and linguistically diverse and First Nations employees who may be employed in such
sectors and face additional hurdles.
110. Increasing the accessibility of collective bargaining promotes the right to enjoyment of
just and favourable conditions of work by enabling employees to leverage the collective
power of multi-employer bargaining to secure safe, healthy and fair working conditions.
(underlining added)
[26] Most significantly, the notes on those clauses of the SJBP Bill directly relating to
supported bargaining relevantly state:
921. Part 20 would reform the low-paid bargaining provisions in Division 9 of Part 2-4 of the
FW Act and create the supported bargaining stream. The proposed supported bargaining
stream is intended to assist those employees and employers who may have difficulty
bargaining at the single-enterprise level. For example, those in low paid industries such
as aged care, disability care, and early childhood education and care who may lack the
necessary skills, resources and power to bargain effectively. The supported bargaining
stream will also assist employees and employers who may face barriers to bargaining,
such as employees with a disability and First Nations employees.
922. The supported bargaining process would operate similarly to the existing low-paid
bargaining process. When an application for a supported bargaining authorisation is
made, the FWC must consider whether it is appropriate for the parties to bargain together.
The FWC would consider the prevailing pay and conditions in the relevant industry,
[2023] FWCFB 176
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whether employers have clearly identifiable common interests, and whether the number
of bargaining representatives would be consistent with a manageable collective
bargaining process. The supported bargaining stream is intended to be easier to access
than the existing low-paid bargaining stream. The revised criteria for making a supported
bargaining authorisation is intended to address the limited take-up of the low-paid
bargaining process.
(underlining added)
[27] There has been no substantive change to the provisions in s 242 as to who may make an
application for an authorisation and the content of such an application. The legislative purpose
of improving accessibility and take-up is primarily achieved by the amendments to s 243 in
respect of the circumstances in which the Commission is required to make an authorisation.
The key changes may be identified as follows:
(1) The former requirement in subsection (1)(b) that the Commission be satisfied that
it is ‘in the public interest to make the authorisation’ has been replaced by one that
the Commission be satisfied that ‘it is appropriate for the employers and
employees (which may be some or all of the employers or employees specified in
the application) that will be covered by the agreement to bargain together’. This
plainly reflects a substantially lower statutory threshold for the required exercise
of power. The concept of the ‘public interest’ is one which ‘directs attention to
that conclusion or determination which best serves the advancement of the interest
or welfare of the public, society or the nation’ and ‘is often used in the sense of a
consideration to be balanced against private interests or in contradistinction to the
notion of individual interest’.18 A standard which requires positive satisfaction as
to the public interest is plainly more stringent than one which involves the exercise
of a more general discretion.19 An appropriateness standard connotes that which
is ‘fair and just’20 or ‘suitable’ or ‘fitting’21 and involves, we consider, an
evaluative assessment of a broader and less prescriptive nature.
(2) None of the matters required to be taken into account under subsections (2) and
(3) of s 243 in its previous form, except for that in former subsection (3)(b), has
been retained. This removes most matters the consideration of which resulted in
the applications in the Practice Nurses decision and United Voice being refused.
(3) The consideration of ‘the degree of commonality in the nature of the enterprises
to which the agreement relates, and the terms of employment in those enterprises’
under former subsection (2)(e) has been replaced by ‘whether the employers have
clearly identifiable common interests’ (subsection (1)(b)(ii)), with examples of
such common interests given in subsection (2). One of the examples, in subsection
(2)(b), is substantially reflective of former subsection (3)(e), but the other two
examples refer to circumstances which do not necessarily relate to commonality
in the nature of the enterprises and their terms and conditions of employment. This
indicates that a broader range of circumstances may be taken into account in
assessing commonality of interests.
(4) An authorisation must also be made, on application, under subsection (2A), if the
employees specified in the application are employed in an industry, occupation or
sector declared by the Minister under subsection (2B).
[2023] FWCFB 176
13
[28] It must also be observed that s 243 now operates subject to the restrictions specified in
s 243A.
[29] We now turn to the main issues of the construction of s 243 which have arisen in this
matter. First, it is readily apparent that s 243(1) imposes an obligation on the Commission to
make a supported bargaining authorisation if an application for the authorisation has been made,
the Commission reaches the requisite state of satisfaction under paragraph (b), and at least some
of the relevant employees are represented by an employee organisation (being an organisation
of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth)). The
requirement for an application in paragraph (a) connotes an application that has validly been
made in accordance with the requirements of s 242. This means that the application must have
been made by a person with standing to do so under s 242(1), must specify the matters
prescribed in s 242(2), and must not be made in relation to a proposed greenfields agreement in
accordance with s 242(3). The consideration required under paragraph (b) of s 243(1) requires
a broad evaluative judgment to be made having regard to the matters specified in subparagraphs
(i)-(iv). A requirement to have regard to a matter means that, insofar as it is relevant, it must be
treated as a matter of significance in the decision-making process.22 However, no single matter
in s 243(1)(b) is to be regarded as being determinative as to whether the requisite state of
satisfaction is reached.
[30] Second, the consideration identified in s 243(1)(b)(i) requires us to have regard to the
‘prevailing pay and conditions within the relevant industry or sector’. The reference to ‘the
relevant industry or sector’ plainly indicates that the assessment required will extend beyond
the pay and conditions of the employees to whom the authorisation sought will apply (unless
the authorisation sought would encompass the entirety of the relevant industry or sector). That
will mean that, in the normal course, an applicant for an authorisation might be expected to
adduce evidence concerning prevailing pay and conditions within the relevant sector.
‘Prevailing’ is to be given its ordinary meaning; that is, ‘predominant’ or ‘generally current’.23
[31] The words in parentheses in s 243(1)(b)(i) require consideration to be given as to
whether ‘low rates of pay’ prevail in the industry or sector. It is to be noted that the legislature
has chosen to use the expression ‘low rates of pay’ rather than refer to the ‘the low paid’ — the
expression used in the former low-paid bargaining scheme, and also currently used in
ss 134(1)(a) and s 284(1)(c). This indicates that some distinction in meaning is intended. ‘Low
paid’ connotes the earnings of employees generally, but ‘low rates of pay’ has a more confined
meaning that refers only to the amount an employee is paid for each defined period of working
time (for example, an hour, day or week) or, in the case of pieceworkers, for each completed
task or unit of work. The use of this different expression indicates that the approach adopted in
the Practice Nurses decision and United Voice whereby ‘low paid’ was given the same meaning
in s 243 as it had been in Annual Wage Review decisions made by reference to ss 134(1)(a) and
284(1)(c), with the benchmark being two-thirds of median adult ordinary-time earnings, should
no longer be followed.
[32] We consider that, prima facie, ‘low rates of pay’ will prevail in an industry or sector if
employees are predominantly paid at or close to the award rates of pay for their classification,
since this is the lowest rate legally available to pay. This is implicit from the objects of the
supported bargaining scheme in s 241, including to assist and encourage employers and
[2023] FWCFB 176
14
employees to bargain and make agreements to meet their needs and to address constraints on
their ability to do so. The needs of employees who are paid at award rates include improving
their terms and conditions of employment in circumstances where there have been constraints
on their ability to bargain. It is also implicit that supported bargaining is a means to assist
employers and employees who have been constrained from bargaining to access productivity
benefits, consistent with the overarching objects in s 171. Further, this approach finds some
support in paragraph [984] of the REM which, in relation to s 243(1)(b)(i), states:
… the prevailing pay and conditions in the relevant industry – this is intended to include whether
low rates of pay prevail in the industry, whether employees in the industry are paid at or close
to relevant award rates, etc;…
(underlining added)
[33] However, in a particular case, it may be that a prevailing rate of pay which is at or close
to the relevant award rate cannot be characterised as a ‘low rate of pay’ because the award rate
itself is relatively high. For the reasons set out later in this decision, it is not necessary for us to
consider this possibility in this matter, and it is best left for fuller consideration in an appropriate
case.
[34] Third, the expression ‘common interests’ used in s 243(1)(b)(ii) in connection with the
employers the subject of an authorisation application is one of wide import, and on its ordinary
meaning extends to any joint, shared, related or like characteristics, qualities, undertakings or
concerns as between the relevant employers. The diversity of the non-exhaustive list of
‘examples’ of common interests in s 243(2) gives contextual support to the breadth of meaning
which we assign to the expression. The common interests must be ‘clearly identifiable’, that is,
plainly discernible or recognisable, but need not be self-evident.
[35] The ACA and the ACCI submitted that the use of the plural expression ‘common
interests’ in s 243(1)(b)(ii) and (2) was deliberate and indicated a contrary intention to the
expression being able to be read in the singular pursuant to s 23(b) of the Acts Interpretation
Act 1901 (Cth). We consider that this submission has force but, as will be apparent later, it is
not necessary for us to determine this issue to finality in this matter.
[36] Fourth, s 243(1)(b)(iii) is concerned with whether the likely number of bargaining
representatives is consistent with a ‘manageable’ — that is, workable or tractable — collective
bargaining process. This requires an assessment to be made which is to some extent speculative
or predictive, since the choice of bargaining representative by the relevant employers and
employees may not be known at the time an application for an authorisation is considered, and
weight has to be given to the scope of their capacity to choose, and change, their bargaining
representatives under s 176 of the FW Act. However, the consideration required is what is
‘likely’ — that is, probable to happen — not what may possibly happen. Any past history of
bargaining, representation at the hearing of the authorisation application, and any sameness or
diversity of views amongst employees and employers concerning the prospect of multi-
employer bargaining may all inform the assessment to be made. However, we do not consider
that the prospect of an agreement being reached if an authorisation is made to be a significantly
relevant consideration since s 243(1)(b)(iii) is concerned with the collective bargaining process,
not the outcome.
[2023] FWCFB 176
15
[37] Fifth, s 243(1)(b)(iv) gives the Commission a broad discretionary scope as to the
relevance and weight of other matters to be taken into account. The applicable objects of the
FW Act in ss 3, 171 and 241 will guide the Commission in identifying those matters which may
appropriately be taken into account, as will the circumstances of the particular case.
[38] With two exceptions, we do not propose beyond the above analysis to engage with all
the various propositions advanced by the parties and the ACTU, Ai Group and the ACCI
concerning the proper construction and application of s 243. Many of the propositions advanced
did not relate to the present application and were highly hypothetical in nature. Their
consideration may await future applications in which they are of relevance.
[39] The first exception is the following submission advanced by the Ai Group:
Given the seriousness of the microeconomic and macroeconomic consequences that can
ultimately flow from the making of a SBA, the Commission should not lightly find that it is
appropriate to do so. Once understood in its context, the test of appropriateness must be seen as
a bar that is overcome only where the circumstances indicate a genuine need to provide the
relevant employers and employees with access to the supported bargaining scheme.24
[40] This submission, we consider, attempts to place a gloss on the statutory language of
s 243 insofar it suggests that the Commission would not ‘lightly’ reach the requisite state of
satisfaction in s 243(1)(b) and characterises the prescribed appropriateness standard as a ‘bar’.
The characterisation of the statutory task in this fashion would be likely to defeat or at least
hinder the achievement of the apparent statutory intention to liberalise access to the scheme of
bargaining in Division 9 of Part 4-2.
[41] Secondly, the ACCI’s submission that the asserted statutory preference for enterprise-
level bargaining should operate to defeat an application for a supported bargaining authorisation
where a capacity for bargaining for a single-enterprise agreement is demonstrated25 must be
treated with caution and cannot be accepted without qualification. We agree that the relevant
parts of the objects of the FW Act in ss 3(f), 171(a) and 241(c) indicate that enterprise-level
bargaining is intended to be the primary and preferred mode of agreement-making under the
FW Act. We also agree that, where it is demonstrated that the employers and employees covered
by a proposed supported bargaining authorisation have the capacity to bargain effectively at the
enterprise level, this is a matter which may be taken into account under s 243(1)(b)(iv) as
weighing against satisfaction that it is appropriate for the employers and employees to bargain
together. However, this consideration should not be taken so far as to transform the
appropriateness standard in s 243(1)(b) into a comparative ‘more appropriate’ standard whereby
the Commission must be satisfied that supported bargaining under Division 9 of Part 4-2 is
more appropriate than any other mode of bargaining available under that Part. This would
constitute an impermissible and erroneous alteration to the statutory test.
Material supporting the application
[42] The primary material supporting the application is an Agreed Statement of Facts (ASF)
signed by the UWU, the IEU, the AEU, Mr Ward and Mr Mondo on behalf of the ACA
employers, CELA, CCCA and G8. In broad terms, the ASF sets out factual propositions
concerning the characteristics of the employers and employees covered by the proposed
authorisation and the ECEC sector generally, including in relation to employee pay rates and
[2023] FWCFB 176
16
qualification levels, the regulatory framework and funding arrangements. The ASF identifies
the source for the factual propositions stated and also annexes a number of the source
documents. No party submitted that we should not rely on the ASF. We accept the ASF as
constituting a reliable evidentiary basis upon which to found our consideration of the
application.
[43] The ACA employers tendered a witness statement made by Mr Mondo, which describes
the role of the ACA and the general characteristics of the ECEC sector, and also describes the
long day care centre which he operates. The ACA employers also tendered witness statements
made by the operators of 16 long day care centres who, in largely common terms, described the
employment, charging and funding arrangements in the centres they operated and confirmed
that their centre fitted within the class of employers described in the application and that they
had appointed Mr Ward and Mr Mondo as their bargaining representatives. The CELA/CCCA
employers tendered a witness statement made by Ms Stevens, which describes the role and
membership of CELA and CCCA, the need for members of these organisation for support in
order to engage in enterprise bargaining, and the commonality of the CELA/CCCA employers
in respect of being long day care providers, having common regulatory requirements and
standards, the way they remunerate their employees, and funding arrangements. G8 tendered a
witness statement made by Ms Tabitha Pearson, its Chief People Transformation Officer, which
describes G8’s business including the regulatory framework in which it operates, its workforce
and employment arrangements and its funding arrangements. None of these witnesses was
required for cross-examination. We see no reason not to accept their evidence.
Consideration
[44] There is no dispute that, for the purpose of s 243(1)(a) of the FW Act, the application
has validly been made under s 242. The UWU, the AEU and the IEU are registered employee
organisations which are entitled to represent the industrial interests of childcare workers,
educators and early childhood teachers employed in long day care centres covered by the
proposed multi-enterprise agreement, and they are also default bargaining representatives for
the proposed agreement by virtue of their membership amongst such employees. They
accordingly have standing to make the application under s 242(1). The application, as amended,
specifies the employers and employees who will be covered by the proposed agreement in
accordance with s 242(2).
[45] As to s 243(1)(c), we are satisfied (and it is not in contest) that at least some of the
employees who will be covered by the proposed agreement are represented by the UWU, the
AEU or the IEU. The application is not made in relation to a proposed greenfields agreement
and thus complies with s 242(3).
[46] In respect of s 243(1)(b), we consider each of the matters we are required to have regard
to below.
The prevailing pay and conditions within the relevant industry or sector (including whether low
rates of pay prevail in the industry or sector): s 243(1)(b)(i)
[47] We find, on the basis of the evidence before us, that rates of pay that are the same as, or
close to, the minimum award rates of pay in the CS Award or the EST Award, are prevalent in
[2023] FWCFB 176
17
the ECEC sector. Pay rates for 57.8 per cent of employees in the ECEC sector are derived from
the applicable award, and pay rates for a further 20.9 per cent are between 0.01 per cent and 10
per cent above the award rate of pay. The evidence is somewhat less clear about conditions of
employment other than rates of pay. However, the fact that the pay setting method for 61.8 per
cent of the ECEC workforce is ‘Award only’ suggests that the conditions of employment
prescribed by the applicable awards are also prevalent.
[48] We also find that low rates of pay prevail in the ECEC sector. Most employees in the
ECEC sector have an ECEC sector-related qualification, with 72 per cent holding a Certificate
III, Certificate IV, Diploma or Advanced Diploma in Early Childhood Education and Care (or
equivalent). The CS Award covers persons with these qualifications in the ECEC sector, and
the applicable classifications and current minimum pay rates are:
Classification Weekly Hourly
Level 3.1 (Certificate III) On commencement 995.00 26.18
Level 3.2 After 1 year 1029.30 27.09
Level 3.3 After 2 years 1061.70 27.94
Level 3.4 (Diploma) 1120.40 29.48
Level 4.1 (Diploma +
appointed as person in charge
or Authorised Supervisor)
On commencement 1172.00 30.84
Level 4.2 After 1 year 1190.00 31.32
Level 4.3 After 2 years 1207.70 31.78
[49] The minimum rates of pay for employees without qualifications are lower than the
above. In particular, support workers (who perform functions such as assisting a qualified
cook/basic food preparation/kitchen hand, laundry work, gardening work, cleaning, driving,
non-trades maintenance or administrative duties) without qualifications are classified in the CS
Award as follows:
Classification Weekly Hourly
Level 1.1 On commencement 878.00 23.11
Level 2.1 On commencement 909.90 23.94
Level 2.2 After 1 year 939.80 24.73
[50] Having regard to the proportion of the ECEC workforce which is paid at or close to the
award rate (as earlier discussed), this is sufficient to found the conclusion that low rates of pay
prevail in the ECEC sector. It is therefore unnecessary for us to consider whether bachelor’s
degree-qualified teachers employed in the ECEC sector (who constitute about 12 per cent of
qualified employees) may also be characterised as having low rates of pay if they are paid at or
close to the minimum rates prescribed by the EST Award. Our conclusion in this respect weighs
in favour of making the authorisation sought.
Whether the employers have clearly identifiable common interests: s 243(1)(b)(ii)
[2023] FWCFB 176
18
[51] The employers specified in the application who would be covered by the proposed
agreement clearly have one overriding common interest, namely, they all operate long day care
businesses in the ECEC sector. This of itself means that there is substantial similarity in the
businesses which they operate. It also gives rise to a number of concomitant common interests:
(1) They are all covered by the CS Award and the EST Award.
(2) They are all covered by a common regulatory framework, the ‘National Quality
Framework’ (NQF). The NQF consists of the following elements:
(a) a model national law, the Education and Care Services National Law 2010,
which has been enacted in each State and Territory, and the Education and
Care Services National Regulations made pursuant to the model law;
(b) The National Quality Standard, which benchmarks services provided by
employers in the ECEC sector by reference to seven quality areas, namely:
• educational program and practice;
• children’s health and safety;
• physical environment;
• staffing arrangements;
• relationships with children;
• collaborative partnerships with families and communities; and
• governance and leadership;
(c) an assessment and quality rating process;
(d) mandated educator/child ratios;
(e) a requirement for ECEC services to provide an educational program based
on one of the two approved learning frameworks (the Early Years Learning
Framework or, in Victoria, the Victorian Early Years Learning and
Development Framework);
(f) regulatory bodies in each State and Territory which are responsible for the
approval, monitoring and quality assessment of ECEC services; and
(g) the Australian Children’s Education and Care Quality Authority, which
guides the implementation of the NQF, works with the State and Territory
regulatory authorities and promotes national consistency.
(3) They are subject to common arrangements for the funding of long day care
services by the Commonwealth. The funding mechanism is the Child Care
Subsidy (CCS), which is paid directly to providers and passed on to families as a
fee reduction. To receive the CCS, ECEC service providers must be approved by
the relevant State or Territory regulatory authority and must otherwise be NQF-
compliant. The amount of fee reduction is dependent on the family’s income and
number of pre-school-aged children in an ECEC service, with families earning
less than $80,000 receiving a 95 per cent fee reduction. The CCS is the largest
[2023] FWCFB 176
19
funding source for long day care providers. Because payment of the CCS is based
on an hourly rate cap which indicates the maximum amount which will be
subsidised by the Commonwealth, this operates as a practical constraint on the
amount which long day care providers can charge families and, in turn, constrains
the wages and conditions which providers can negotiate with their employees.
[52] The existence of these clearly identifiable common interests weighs in favour of making
the authorisation applied for.
Whether the likely number of bargaining representatives for the agreement would be consistent
with a manageable collective bargaining process: s 243(1)(b)(iii)
[53] We are satisfied that the likely number of bargaining representatives for the proposed
multi-employer agreement would be consistent with a manageable collective bargaining
process. As earlier explained, despite the fact that the proposed agreement would cover 64
employers in total, the 41 ACA employers have each nominated Mr Ward and Mr Mondo as
their joint bargaining representatives, another 22 employers have nominated CCCA or CELA
as their bargaining representative, and G8 will act as its own bargaining representative. This is
clearly a manageable number of representatives on the employers’ side. In respect of
employees, it is likely that the UWU, the AEU and the IEU will be the major bargaining
representatives. It is possible that, if an authorisation is granted, individual employees will
nominate additional bargaining representatives, but there is no evidence before us that it is
likely that this will occur to such an extent as to render the collective bargaining process other
than manageable. This consideration weighs in favour of the grant of the authorisation sought.
Any other matters the Commission considers appropriate: s 243(1)(b)(iv)
[54] We consider it appropriate to have regard to four additional matters. The first is that all
the affected employers support the application and none of the employees that would be affected
has advised us that they oppose the making of the authorisation sought. This is of significance
having regard to the prohibition upon employers engaging in bargaining for any type of
agreement other than a supported bargaining agreement once an authorisation is in operation (s
172(7)(b)), and weighs in favour of making the authorisation.
[55] The second matter is that over 90 per cent of the workforce in the ECEC sector is female,
and there is no evidentiary basis to conclude that the position is any different in respect of the
workforce of the employers who would be covered by the proposed multi-enterprise agreement.
Having regard to our earlier finding that low rates of pay prevail in the ECEC sector, granting
the authorisation applied for would open the prospect of improving rates of pay of a female-
dominated workforce, which would be consistent with that part of the object of the FW Act in
s 3(a) concerned with the promotion of gender equality. This weighs in favour of the making
of the authorisation.
[56] Third, the evidence indicates that there has been a relatively low uptake of enterprise
bargaining in the ECEC sector due to a number of factors, including that a large proportion of
long day care operations are small in size and lack the management capacity and other resources
to engage in bargaining, and the funding and pricing constraints to which we have earlier
referred. Employers in the sector, including (subject to one caveat discussed below) those the
[2023] FWCFB 176
20
subject of this application, clearly need support in order to engage in effective bargaining. That
support may arise on a number of levels and includes the support employers will derive from
being able to bargain collectively and the assistance which the Commission will be empowered
to provide pursuant to s 246. The grant of the authorisation will for this reason be consistent
with the statutory object in s 241, and this weighs in favour of making the authorisation.
[57] Fourth, it appears to us that the inclusion of G8 in the group of employers to which the
authorisation will apply is somewhat anomalous. Although there is no doubt that G8 shares the
common interests with the other employers which we have earlier identified, its size makes it
significantly different in character to all the other employers. It has some 10,000 employees and
presumably has the personnel resources to permit it to engage in enterprise bargaining. This
consideration weighs, to some degree, against the making of an authorisation which includes
G8.
Conclusion
[58] On the basis of our consideration of the matters specified in s 243(1)(b) of the FW Act,
we are satisfied that it is appropriate for all of the employers and employees that will be covered
by the proposed multi-enterprise agreement to bargain together. In summary:
• low rates of pay at or close to the award minima prevail in the ECEC sector;
• the employers specified in the authorisation have a number of significant common
interests;
• the likely number of bargaining representatives is small and consistent with a
manageable collective bargaining process;
• the specified employers support the making of the authorisation;
• the grant of the authorisation may promote gender equality in a female-dominated
sector; and
• support is required in order to improve the uptake of enterprise bargaining in the
sector.
[59] These matters overwhelmingly favour the making of a supported bargaining
authorisation. The only matter which we have been able to identify as weighing against the
making of the authorisation in the terms applied for is the inclusion of G8, which is an
anomalously large employer. However, having regard to the fact that G8 shares the identified
common interests with the other specified employers, this matter is not sufficient to render other
than appropriate that all of the specified employers, including G8, should be allowed to bargain
together.
[60] None of the restrictions in s 243A on making supported bargaining authorisations
applies here. In relation to s 243A(1), the following enterprise agreements which have not
passed their nominal expiry dates apply to the following specified employers:
Enterprise agreement Nominal expiry date Relevant employer(s) to
whom agreement applies
Bermagui Pre-School Co-
Operative Society Ltd
18 November 2023 Bermagui Pre-School Co-
Operative Society Ltd
[2023] FWCFB 176
21
Enterprise agreement Nominal expiry date Relevant employer(s) to
whom agreement applies
Teachers’ Agreement
2020 [AE509492]
Gowrie Victoria Early
Childhood Teachers
Enterprise Agreement
2022 [AE518527]
1 July 2025 The Lady Gowrie Child
Centre (Melbourne) Inc.
t/a Gowrie Victoria
Victorian Early
Childhood Teachers and
Educators Agreement
2020 [AE511947]
30 September 2024 Ashwood Children’s
Centre Inc
Hawthorn Early Years
Incorporated
Victorian Early
Childhood Agreement
2021 [AE514652]
30 September 2024 Coburg Children’s Centre
Incorporated
[61] However, as earlier set out, the authorisation sought excludes any work covered by an
enterprise agreement that has not passed its nominal expiry date, and consequently making the
authorisation will not contravene the prohibition in s 243A(1).
[62] Because the requirements in paragraphs (a), (b) and (c) of s 243(1) of the FW Act are
each satisfied, and none of the restrictions in s 243A applies, we are required by s 243(1) to
make the supported bargaining authorisation applied for by the UWU, the AEU and the IEU.
The authorisation is made by a separate order that is published in conjunction with this decision
and, in accordance with s 243(4), will operate from the date of this decision.
PRESIDENT
Appearances:
B Redford for the United Workers’ Union.
M Gibian SC for the Australian Education Union.
M Aird for the Independent Education Union of Australia.
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvMjAyMC8xMS9hZTUwOTQ5Mi5wZGY1?sid=&q=AE509492
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvMjAyMi8xMi9BRTUxODUyNy5wZGY1?sid=&q=AE518527
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvMjAyMS82L2FlNTExOTQ3LnBkZg2?sid=&q=AE511947
https://www.fwc.gov.au/document-search/view/3/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZW50ZXJwcmlzZWFncmVlbWVudHMvMjAyMi8xL2FlNTE0NjUyLnBkZg2?sid=&q=AE514652
[2023] FWCFB 176
22
N Ward for the Australian Childcare Alliance and the ACA employers.
L Stevens for the Community Child Care Association and Community Early Learning Australia
Limited.
T Pearson for G8 Education Limited.
S Peldova-McClelland for the Australian Council of Trade Unions.
R Bhatt for the Australian Industry Group.
L Izzo for the Australian Chamber of Commerce and Industry.
Hearing details:
2023.
Melbourne:
16, 17 August.
[2023] FWCFB 176
23
ANNEXURE A
No Legal name of
business
Trading name(s) of
business
ABN/ACN Bargaining
representative
1 DMP Child Care
Association Inc
DMP Early
Learning
41 540 918 533 Nigel Ward and
Paul Mondo
2 3 Bears Cottage Pty
Ltd
3 Bears Cottage
Early Education
Service
068 154 423 Nigel Ward and
Paul Mondo
3 CBF Childcare Pty
Ltd
Daws Road Early
Learning Centre
145 892 342 Nigel Ward and
Paul Mondo
4 Windybanks Pty Ltd Unley Early
Learning Centre
071 982 100 Nigel Ward and
Paul Mondo
5 Starfish Childcare
Pty Ltd
Starfish Early
Learning Centre
129 694 382 Nigel Ward and
Paul Mondo
6 Starfish Childcare
Nunawading Pty Ltd
ATF Starfish
Nunawading Trust
Starfish Early
Learning Centre
(Nunawading)
164 993 695 Nigel Ward and
Paul Mondo
7 Starfish Childcare
Springvale Pty Ltd
Starfish Early
Learning Centre
(Springvale)
601 126 149 Nigel Ward and
Paul Mondo
8 Starfish Childcare
Clayton Pty Ltd ATF
Starfish Clayton
South Trust
Starfish Early
Learning Centre
(Clayton South)
616 756 604 Nigel Ward and
Paul Mondo
9 Starfish Childcare
Reservoir Pty Ltd
ATF Starfish
Reservoir Trust
Starfish Early
Learning Centre
(Reservoir)
621 199 308 Nigel Ward and
Paul Mondo
10 Starfish Essendon
Pty Ltd ATF Starfish
Essendon Trust
Starfish Early
Learning Centre
(Essendon)
665 079 998 Nigel Ward and
Paul Mondo
[2023] FWCFB 176
24
No Legal name of
business
Trading name(s) of
business
ABN/ACN Bargaining
representative
11 Thomanders Pty Ltd Essence Early
Learning
622 895 676 Nigel Ward and
Paul Mondo
12 Midi Property
Investment Pty Ltd
Coolamon School of
Early Learning and
Warriapendi Early
Learning
124 484 368 Nigel Ward and
Paul Mondo
13 S and A Chemello
Pty Ltd
Malvern Springs
Early Learning and
Ellenbrook School
of Early Learning
154 695 664 Nigel Ward and
Paul Mondo
14 P and A Chemello
Nominees Pty Ltd
Kingsway
Afterschool Care
661 848 225 Nigel Ward and
Paul Mondo
15 Peacock Street Long
Day Care Pty Ltd
Peacock Street Long
Day Care; Bindook
Cottage; Peek-A-
Boo Cottage
36 073 717 665 Nigel Ward and
Paul Mondo
16 Mondo Corporation
Pty Ltd ATF The
Mondo Family Trust
Bimbi Early
Learning and
Kindergarten
62 339 690 171 Nigel Ward and
Paul Mondo
17 Village Kids
Childrens Centre –
Domain Pty Ltd
Educating Kids
Early Learning
Centre – Domain
98 604 704 949 Nigel Ward and
Paul Mondo
18 Village Kids
Childrens Centre –
Townsville Pty Ltd
Educating Kids
Early Learning
Centre – Townsville
38 602 117 411 Nigel Ward and
Paul Mondo
19 Educating Kids
Childrens Centre Pty
Ltd
Educating Kids
Early Learning
Centre – Kirwan
85 168 791 268 Nigel Ward and
Paul Mondo
20 Wispfinn Pty Ltd Childcare First
trading as
BelaBabes Early
Learning Centre
061 285 596 Nigel Ward and
Paul Mondo
[2023] FWCFB 176
25
No Legal name of
business
Trading name(s) of
business
ABN/ACN Bargaining
representative
21 Child Care Services
Australia Pty Ltd
Highway Child Care
& Early Learning
Centre;
Lockleys Child Care
& Early Learning
Centre
008 209 578 Nigel Ward and
Paul Mondo
22 Child Care Services
SA Pty Ltd
Angaston Child
Care & Early
Learning Centre;
Kapunda Child Care
& Early Learning
Centre
121 352 412 Nigel Ward and
Paul Mondo
23 Bear Childcare Pty
Ltd
Barfa Bear Child
Care
631 015 079 Nigel Ward and
Paul Mondo
24 Little Scholars
School of Early
Learning (Nerang)
Pty Ltd
Little Scholars
School of Early
Learning (Nerang)
78 618 708 982 Nigel Ward and
Paul Mondo
25 Little Scholars
School of Early
Learning (Ashmore)
Pty Ltd
Little Scholars
School of Early
Learning (Ashmore)
72 608 520 252 Nigel Ward and
Paul Mondo
26 Little Scholars
School of Early
Learning (Yatala)
Pty Ltd
Little Scholars
School of Early
Learning (Yatala)
17 600 168 910 Nigel Ward and
Paul Mondo
27 Little Scholars
School of Early
Learning (Stapylton)
Pty Ltd
Little Scholars
School of Early
Learning
(Stapylton)
60 604 624 599 Nigel Ward and
Paul Mondo
28 Little Scholars
School of Early
Learning (Deception
Bay) Pty Ltd
Little Scholars
School of Early
Learning
(Deception Bay)
74 608 520 261 Nigel Ward and
Paul Mondo
[2023] FWCFB 176
26
No Legal name of
business
Trading name(s) of
business
ABN/ACN Bargaining
representative
29 Little Scholars
School of Early
Learning (Redland
Bay) Pty Ltd
Little Scholars
School of Early
Learning (Redland
Bay)
48 608 520 592 Nigel Ward and
Paul Mondo
30 Little Scholars
School of Early
Learning (Burleigh)
Pty Ltd
Little Scholars
School of Early
Learning (Burleigh)
32 634 191 861 Nigel Ward and
Paul Mondo
31 Little Scholars
School of Early
Learning (Redland
Bay South) Pty Ltd
Little Scholars
School of Early
Learning (Redland
Bay South)
18 628 507 602 Nigel Ward and
Paul Mondo
32 Little Scholars
School of Early
Learning (George St)
Pty Ltd
Little Scholars
School of Early
Learning (George
St)
78 609 720 710 Nigel Ward and
Paul Mondo
33 Little Scholars
School of Early
Learning (Pacific
Pines) Pty Ltd
Little Scholars
School of Early
Learning (Pacific
Pines)
94 659 321 132 Nigel Ward and
Paul Mondo
34 Little Scholars
School of Early
Learning (Ormeau)
Pty Ltd
Little Scholars
School of Early
Learning (Ormeau)
40 645 111 048 Nigel Ward and
Paul Mondo
35 Little Scholars
School of Early
Learning (Ormeau 2)
Pty Ltd
Little Scholars
School of Early
Learning (Ormeau
2)
64 169 563 482 Nigel Ward and
Paul Mondo
36 Little Scholars
School of Early
Learning (Ormeau
Village) Pty Ltd
Little Scholars
School of Early
Learning (Ormeau
Village)
17 653 673 557 Nigel Ward and
Paul Mondo
37 Organic Seedlings
Education Pty Ltd
Organic Seedlings
Education
614 760 691 Nigel Ward and
Paul Mondo
[2023] FWCFB 176
27
No Legal name of
business
Trading name(s) of
business
ABN/ACN Bargaining
representative
38 Early Years Learning
and Development
Pty Ltd
Landsdale School of
Early Learning
636 291 284 Nigel Ward and
Paul Mondo
39 Radiam Early
Learning Pty Ltd
Sagewood Early
Learning Dayton;
Sagewood Early
Learning Joondalup;
Sagewood Early
Learning Canning
Vale;
Sagewood Early
Learning Success;
Sagewood Early
Learning Harrisdale
98 634 699 719 Nigel Ward and
Paul Mondo
40 North Epping Early
Learning Pty Ltd
Cressy Road Early
Learning;
Mary Street Early
Learning
78 614 970 320 Nigel Ward and
Paul Mondo
41 Clovel Childcare &
Early Learning
Centre Granville Pty
Ltd
Clovel Childcare,
Early Learning &
OOSH Services
60 114 879 159 Nigel Ward and
Paul Mondo
42 Ashwood Children’s
Centre Inc.
Ashwood
Children’s Centre
36 248 912 689 Community
Child Care
Association
43 Coburg Children’s
Centre Incorporated
Coburg Childrens
Centre Childcare
and Kindergarten
56 265 141 966 Community
Child Care
Association
44 Derby Street
Children’s Centre
Incorporated
Derby Street
Children’s Centre
97 805 251 620 Community
Child Care
Association
45 The Lady Gowrie
Child Centre
(Melbourne) Inc
Gowrie Victoria 27 625 198 252 Community
Child Care
Association
[2023] FWCFB 176
28
No Legal name of
business
Trading name(s) of
business
ABN/ACN Bargaining
representative
46 Hawthorn Early
Years Incorporated
Hawthorn Early
Years Education
and Care
77 121 473 386 Community
Child Care
Association
47 Hillbank Community
Children’s Centre
Incorporated
Hillbank
Community
Childcare centre
35 758 645 243 Community
Child Care
Association
48 Unley Community
Child Care Centre
Inc.
Unley Community
Child Care Centre
Inc.
14 488 736 225 Community
Child Care
Association
49 Yawarra Children’s
Services
Yawarra Children’s
Services;
Pookara
Community Early
Education and Care
37 566 556 446 Community
Child Care
Association
50 Amy Hurd Early
Learning Centre Inc
Amy Hurd Early
Learning Centre Inc
99 590 633 230 Community
Early Learning
Australia
51 Balranald Early
Learning Centre Inc
Balranald Early
Learning Centre Inc
69 955 755 995 Community
Early Learning
Australia
52 Believe Playschool
Pty Ltd
Believe Playschool 55 621 147 260 Community
Early Learning
Australia
53 Bermagui Preschool
Co-operative Society
Ltd.
Bermagui Preschool
Co-Op Soc Ltd
47 808 600 330 Community
Early Learning
Australia
54 The Trustee for
Ross-Clarke Family
Trust
Cheeky Cherubs
Preschool
90 148 256 996 Community
Early Learning
Australia
55 Childcare Australia
United Ltd
Bonnet Bay Child
Care Centre
56 124 784 194 Community
Early Learning
Australia
[2023] FWCFB 176
29
No Legal name of
business
Trading name(s) of
business
ABN/ACN Bargaining
representative
56 Kirrawee Child Care
Centre Pty Ltd
Kirrawee Child
Care Centre
16 097 080 352 Community
Early Learning
Australia
57 Little Mate Pty Ltd Cobbers Child Care
Centre
86 118 922 348 Community
Early Learning
Australia
58 Edgeworth Child
Care Centre Inc
Edgeworth Child
Care Centre Inc
54 358 037 628 Community
Early Learning
Australia
59 Glendale Early
Education Centre
Inc.
Glendale Early
Education Centre
80 537 615 393 Community
Early Learning
Australia
60 Koala Long Day
Care – Sutherland
Hospital Ltd.
Koala Long Day
Care – Sutherland
Hospital
87 003 550 721 Community
Early Learning
Australia
61 The Trustee for S&N
Clayton Family Trust
Bellingen Burrow
Long Day Care
Centre;
Young Explorers
Pre-school and
Long Day Care
30 232 711 318 Community
Early Learning
Australia
62 Gowrie NSW Gowrie NSW 57 001 894 659 Community
Early Learning
Australia
63 Big Fat Smile Group
Ltd
Big Fat Smile 82 002 796 232 Community
Early Learning
Australia
64 G8 Education
Limited
G8 Education 95 123 828 553 G8 Education
Limited
Printed by authority of the Commonwealth Government Printer
PR766608
[2023] FWCFB 176
30
1 There is now no subsection (b) in s 241.
2 United Voice and The Australian Workers’ Union of Employees, Queensland [2011] FWAFB 2633, 207 IR 251.
3 [2013] FWC 511.
4 Ibid at [160]-[161].
5 [2011] FWAFB 2633, 207 IR 251 at [17].
6 [2013] FWC 511 at [90]-[91].
7 [2010] FWAFB 4000.
8 [2013] FWCFB 4000.
9 [2014] FWC 6441.
10 Ibid at [34]-[50].
11 Ibid at [66].
12 Ibid at [74].
13 Ibid at [96]-[97].
14 Ibid at [101].
15 Ibid at [107]-[109].
16 Ibid at [115]-[119].
17 Ibid at [125]-[126].
18 McKinnon v Secretary, Department of Treasury [2005] FCAFC 142, 145 FCR 70 at [9]-[10] (Tamberlin J).
19 Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78 at [33]-[35], [43].
20 Nile v Wood [1988] HCA 30, 167 CLR 133 at 143 per Deane and Toohey JJ.
21 Suncoast Scaffold Pty Ltd [2023] FWCFB 105 at [16].
22 Edwards v Giudice [1999] FCA 1836, 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty
Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission [2014] FCAFC 118, 225 FCR 154,
244 IR 461 at [56].
23 Macquarie Online Dictionary.
24 Ai Group submission, 7 August 2023 at [23].
25 ACCI submission, 7 August 2023 at [3.8]-[3.12].
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb2633.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc511.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb2633.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc511.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwafb4000.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb4000.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwc6441.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb105.pdf
https://www.fwc.gov.au/documents/sites/b2023-538/b2023-538-submissions-ai-group-2023-08-07.pdf
https://www.fwc.gov.au/documents/sites/b2023-538/b2023-538-submissions-acci-2023-08-07.pdf
