Airport West Early Learning Cooperative Ltd T/A Airport West Early Learning Cooperative
[2024] FWCA 2838
•2 AUGUST 2024
| [2024] FWCA 2838 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
Airport West Early Learning Cooperative Ltd T/A Airport West Early Learning Cooperative
(AG2024/2352)
AIRPORT WEST CHILDCARE COOPERATIVE AND UNITED VOICE PROFESSIONAL CHILDCARE STANDARD 2013: A WORKPLACE AGREEMENT FOR STAFF IN VICTORIAN EARLY CHILDHOOD EDUCATION AND CARE
| Children’s services | |
| COMMISSIONER FOX | MELBOURNE, 2 AUGUST 2024 |
Application for termination of the Airport West Childcare Cooperative and United Voice Professional Childcare Standard 2013: A Workplace Agreement for Staff in Victorian Early Childhood Education and Care
On 27 June 2024, Airport West Early Learning Cooperative Ltd T/A Airport West Early Learning Cooperative (the Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Airport West Childcare Cooperative and United Voice Professional Childcare Standard 2013: A Workplace Agreement for Staff in Victorian Early Childhood Education and Care (the Agreement). The Applicant is the employer covered by the Agreement. The Agreement is a single enterprise agreement with a nominal expiry date of 30 June 2015.
Legislation
The Act provides as follows:
“222 Application for the FWC’s approval of a termination of an enterprise agreement
Application for approval
(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.
Material to accompany the application
(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.
When the application must be made
(3) The application must be made:
(a)within 14 days after the termination is agreed to; or
(b)if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.
223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.
224 When termination comes into operation
If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”
Consideration
Section 222
I am satisfied that the requirements of s.222(1) and s.222(2) of the Act have been met. The application to terminate the Agreement has been made by the Applicant, which is covered by the Agreement. Further, it was accompanied by a Form F24 and a Form F24A declaration made by Mr Miles Hamilton, President of the Airport West Early Learning Cooperative, setting out the basis upon which the FWC can be satisfied that the requirements of s.223 of the Act have been met.
The application was made within 14 days of the date after the termination was agreed, that being the date on which the voting process concluded (being 13 June 2024).
Section 223
I must approve the application if I am satisfied that the requirements set out in s.223 of the Act have been met. I consider each of those requirements now.
Each employer covered by the Agreement complied with subsection 220(2)
The employer must take all reasonable steps to notify the employees of the time and date of the vote, the voting method that will be used (s.220(2)(a)) and give the employees a reasonable opportunity to decide whether to approve the proposed termination (s.220(2)(b)).
In the Form F24A, Mr Hamilton declared the following steps had been taken in respect of s.220(2)(a):
i. On 23 May 2024, a letter was provided to employees regarding the vote. This letter had a voting form attached advising employees to complete the vote and return it to the Centre Director by 6:00PM on 28 May 2024.
ii. Further to this the Form F24A notes that two employees were on Parental Leave at the time and accordingly were unable to submit their votes by this date. The Applicant allowed these two employees to submit their votes on 6 June 2024 and 13 June 2024.
The Applicant submits, and I am satisfied, the above steps satisfy the requirements of s.220(2)(a).
Mr Hamilton also declared in the Form F24A that the following steps had been taken in respect of s.220(2)(b):
i. On 17 May 2023, a letter was provided to employees about the proposed termination, including a comparison table of the enterprise agreement terms and the relevant modern award.
On 25 May 2023, a letter was provided to employees about the proposed termination.
On 31 May 2023, a staff meeting took place where the proposed termination was discussed.
On 8 May 2024, a letter was provided to employees about the proposed termination, including a table outlining the key changes between the Agreement and the award, and how these changes were likely to affect employees.
The Applicant submits, and I am satisfied, the above steps satisfy the requirements of s.220(2)(b).
The termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies
The Agreement is a single-enterprise agreement and therefore s.221(1) applies.
Section 221(1) provides that if the employees have been asked to approve a proposed termination in accordance with s.220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.
In the Form F24A, Mr Hamilton declared that voting commenced on 23 May 2024 and ended on 13 June 2024 and of the 18 employees covered by the Agreement, 18 employees cast a valid vote in favour of approving the termination of the Agreement. As such, the termination was agreed to on 13 June 2024.
Having regard to the circumstances of this matter, I am satisfied that the termination was agreed to in accordance with s.221(1).
There are no other reasonable grounds for believing that the employees have not agreed to the termination
I am satisfied that there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination.
It is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement
I sought the views of the employee organisation covered by the Agreement, United Voice (now known as the United Worker’s Union). Email correspondence from the United Worker’s Union was received by my Chambers on 17 July 2024 stating there was no objection from the United Worker’s Union to the application.
Conclusion
In considering the material contained in the statutory declaration filed with the application as well as the supporting material to the application, I am satisfied that the Applicant has complied with the requirements in s.220(2) of the Act.
I observe that the application has been made consistent with the requirements in s.222 of the Act. Further, based on the material provided I am satisfied that the termination was agreed to by a majority of the relevant employees who cast a valid vote to approve the termination as required under s.221(1) of the Act. I am not aware of any reasonable grounds for believing that the employees have not agreed to the termination. I therefore consider it appropriate to approve the termination.
I approve the termination of the Agreement. The termination will operate from 2 August 2024. An Order[1] to this effect will be issued with this Decision.
COMMISSIONER
[1] PR777850.
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