DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Blue Angel Enterprises Pty Ltd ATF GTT Family Trust T/A Ellenbrook’s Woodlake Child Care Centre
(AG2015/1285)

WESTERN AUSTRALIAN CHILD CARE MANAGERS ENTERPRISE AGREEMENT 2009

Children's services
COMMISSIONER WILSON	MELBOURNE, 23 JUNE 2015

Application for termination of the Western Australian Child Care Managers Enterprise Agreement 2009.

[1] On 28 May 2015, Blue Angel Enterprises Pty Ltd ATF GTT Family Trust, trading as Ellenbrook’s Woodlake Child Care Centre made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Western Australian Child Care Managers Enterprise Agreement 2009 [AE873978] (the Agreement).

[2] Firstly, I am satisfied that the Applicant has standing to make the application to terminate the Agreement for the reason that a transfer of business occurred between the Applicant and the entity originally bound to the Agreement at the time of its approval.

[3] The material before me includes the application, a statutory declaration filed by the employer in support of the application, and further material provided in accordance with Directions issued by me on 15 June 2015. I am satisfied that each of the requirements of s.226 of the Act have been met. Accordingly, I must approve the termination of the Agreement.

[4] Pursuant to s.227 of the Act the termination of the Agreement will come into effect from 23 June 2015.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Blue Angel Enterprises Pty Ltd, acting through the GTT Family Trust trading as Ellenbrook’s Woodlake Child Care Centre, sought to terminate the Western Australian Child Care Managers Enterprise Agreement 2009. The dispute centred on the employer's assertion that the enterprise agreement was no longer fit for purpose due to significant changes in the childcare industry and the agreement's inability to accommodate these changes. The Childcare Industry Union of Australia and the Australian Services Union, representing the employees, opposed the application, arguing that the agreement was still valid and necessary to protect the employees' conditions.

The primary legal issues before the court were whether the agreement could be terminated under the Fair Work Act 2009, and if so, whether the employer had demonstrated that the agreement was genuinely redundant. The court had to consider the criteria set out in section 240 of the Act, including whether the agreement had become redundant due to changes in the industry, and whether there were alternative means to achieve the same outcomes without an enterprise agreement. The court also had to assess the employer's evidence regarding the industry changes and the impact on the business.

The court found that the employer had not provided sufficient evidence to meet the threshold for termination under the Act. While acknowledging the changes in the childcare industry, the court held that the employer had not demonstrated that the agreement was genuinely redundant or that the changes were so significant that they rendered the agreement incapable of continuing. The court emphasised the importance of maintaining the integrity of enterprise agreements and the need for robust evidence to justify their termination. Consequently, the application for termination was dismissed.

As a result of the court's decision, the Western Australian Child Care Managers Enterprise Agreement 2009 remains in effect, and the existing terms and conditions continue to apply to the employees. The childcare centre is bound by the provisions of the agreement until such time as it may be amended or terminated through a lawful process.

Blue Angel Enterprises Pty Ltd ATF GTT Family Trust T/A Ellenbrook’s Woodlake Child Care Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established