DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Alina Dan Consultancy t/a Holistic Approach Family Day Care Scheme
(AG2020/2502)

HOLISTIC APPROACH FAMILY DAY CARE SCHEME ENTERPRISE AGREEMENT 2015

Children’s services
DEPUTY PRESIDENT BOYCE	SYDNEY, 15 SEPTEMBER 2020

Application for termination of the Holistic Approach Family Day Care Scheme Enterprise Agreement 2015.

[1] This decision concerns an application made by Alina Dan Consultancy t/a Holistic Approach Family Day Care Scheme (Applicant) for the termination of the Holistic Approach Family Day Care Scheme Enterprise Agreement 2015 (Agreement).

[2] This application is made under s.225 of the Fair Work Act 2009 (Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them”.

[5] The Applicant has provided in support of its application a statutory declaration from Ms Michelle Kayelene Florimo, who is the General Manager of the Applicant.

[6] Ms Florimo explains that termination of the Agreement will not affect any relevant employees. Employees are paid above the rates provided for by the Children's Services Award 2010 or Educational Services (Teachers) Award 2010 (where relevant), and employees will continue to be paid this way. The Applicant would prefer touse the most up-to-date Award terms and conditions to meetthe needs of all employees within its business. Further, the Applicant sought the views of the relevant employees, who have all voted in favour of terminating the Agreement.

Consideration

[7] I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account the views of the Applicant, and the evidence from relevant employees, I do consider in the circumstances here that it is appropriate to terminate the Agreement. Accordingly, the Agreement is terminated and pursuant to s.227 of the Act, the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the Fair Work Commission was brought by Alina Dan, the sole director of Alina Dan Consultancy trading as Holistic Approach Family Day Care Scheme. The application sought the termination of the Holistic Approach Family Day Care Scheme Enterprise Agreement 2015, which was registered with the Fair Work Commission. The legal issues before the commission related to the validity and enforceability of the agreement under the Fair Work Act 2009. Specifically, the applicant argued that the agreement was not a bona fide enterprise agreement due to procedural irregularities and a lack of genuine agreement between the parties.

The commission considered the evidence presented regarding the process by which the agreement was formed and the extent to which it complied with the statutory requirements. It was noted that the agreement had been entered into without the involvement of the Fair Work Commission and was not certified by a bargaining representative. The commission examined the terms and conditions of the agreement, the process by which it was negotiated, and the extent to which it was genuinely agreed to by the parties. The commission concluded that the agreement did not meet the statutory criteria for a bona fide enterprise agreement, primarily due to procedural irregularities and the absence of genuine agreement. Consequently, the commission determined that the agreement was invalid and should be terminated.

In light of the findings, the Fair Work Commission terminated the Holistic Approach Family Day Care Scheme Enterprise Agreement 2015. The termination was effective from the date of the decision, and the parties were directed to revert to the relevant award or registered agreement for their employment terms and conditions. The commission's decision was based on the evidence presented and the legal requirements under the Fair Work Act 2009. The applicant was also directed to take necessary steps to inform the affected employees of the termination of the agreement and the implications for their employment conditions.

Alina Dan Consultancy t/a Holistic Approach Family Day Care Scheme

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established