Blue Gum Early Learning And Child Care Centre Incorporated - [2025] FWC 1089

[2025] FWC 1089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 222—Enterprise agreement

Blue Gum Early Learning And Child Care Centre Incorporated

(AG2025/926)

Children’s services
DEPUTY PRESIDENT BEAUMONT	PERTH, 16 APRIL 2025

Application for termination of the Blue Gum Early Learning & Child Care Centre Enterprise Agreement 2013-2017

Issue and outcome

On 3 April 2025, Blue Gum Early Learning and Child Care Centre (the Applicant) applied for the termination of the Blue Gum Early Learning And Child Care Centre Enterprise Agreement 2013-2017 (the Agreement)[1] under s 222 of the Fair Work Act 2009 (Cth) (the Act).

The Agreement is a single enterprise agreement. It covers the work of employees engaged in the ‘children’s services and early childhood education industry’[2] including long day care, occasional care, nurseries, childcare centres and the like. The nominal expiry date of the Agreement is 10 October 2017. If the Agreement did not apply to the employees’ employment, the same employees would be covered by the Children’s Services Award 2010[3] and the Educational Services (Teachers) Award 2020[4] (the Awards).

The Applicant has standing to apply for the termination of the Agreement under s 222(1) of the Act. The application was accompanied by the requisite documentation under s 222(2) and was made within the prescribed statutory period.[5] Section 222 deals with circumstances where termination of an agreement is sought on the basis that termination has been agreed to. The Applicant says that a majority of employees have agreed to terminate the Agreement in accordance with the provisions of the Act.

Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s 222 of the Act. Section 223 of the Act is as follows:

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.

On the facts before me, I am satisfied that a majority of employees voted in favour of the termination of the Agreement, and that there are no other reasonable grounds for believing that the termination was not agreed. Sections 223(b) and (c) have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Blue Gum Early Learning And Child Care Centre Incorporated [2025] FWC 1089
Case: [2025] FWC 1089
Decision Date: 16 APRIL 2025

CaseChat Overview and Summary

Blue Gum Early Learning and Child Care Centre (the Applicant) applied to the Fair Work Commission for the termination of the Blue Gum Early Learning and Child Care Centre Enterprise Agreement 2013-2017 (the Agreement). The Agreement is a single enterprise agreement that governs the employment of employees engaged in the children's services and early childhood education industry, including long day care, occasional care, nurseries, and childcare centres. The Applicant sought to terminate the Agreement as it was beyond its nominal expiry date of 10 October 2017. If the Agreement did not apply to the employees' employment, they would be covered by the Children’s Services Award 2010 and the Educational Services (Teachers) Award 2020.

The legal issues before the court were whether the requirements for the termination of the Agreement under section 223 of the Fair Work Act 2009 were met. Specifically, the court needed to determine if the employer provided employees with a reasonable opportunity to decide whether to approve the termination, if the termination was agreed to in accordance with the provisions of the Act, and if there were any other reasonable grounds for believing that the employees had not agreed to the termination. The court also needed to consider if it was appropriate to approve the termination, taking into account the views of the employee organisation covered by the Agreement.

The court found that the Applicant had complied with the requirements for the termination of the Agreement under section 223 of the Act. The Applicant had provided employees with a reasonable opportunity to decide whether to approve the termination, as evidenced by the detailed explanatory materials and the opportunity for employees to make enquiries about the termination of the Agreement. The court was satisfied that the termination of the Agreement was agreed to by a majority of the employees who cast a valid vote to approve the termination. Additionally, there were no other reasonable grounds for believing that the employees had not agreed to the termination. Finally, the court considered that it was appropriate to approve the termination, taking into account the views of the United Workers' Union, an employee organisation covered by the Agreement, which did not oppose the application.

In conclusion, the court terminated the Agreement and ordered that the termination will take effect from the date of this decision. The court's detailed reasons follow, and an Order to this effect issues concurrently with this decision.

Orders