Budgewoi Halekulani Preschool Kindergarten Inc

[2014] FWCA 4972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Budgewoi Halekulani Preschool Kindergarten Inc
(AG2014/6637)

BUDGEWOI HALEKULANI PRESCHOOL KINDERGARTEN INCORPORATED EMPLOYEE COLLECTIVE AGREEMENT 2013

Children’s services
COMMISSIONER MCKENNA	SYDNEY, 24 JULY 2014

Application for termination of the Budgewoi Halekulani Preschool Kindergarten Incorporated Employee Collective Agreement 2013.

[1] An application has been made for approval of the termination an enterprise agreement known as the Budgewoi Halekulani Preschool Kindergarten Incorporated Employee Collective Agreement 2013 (“the Agreement”). The application has been made pursuant to s.222 of the Fair Work Act 2009 (“the Act”) by Budgewoi Halekulani Preschool Kindergarten Inc (“the applicant”).

[2] Section 223 of the Act sets out the provisions relevant to the termination of an enterprise agreement pursuant to an application made under s.222:

“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.”

[3] The applicant provided a statutory declaration which outlined the reasons for the proposed termination (which focussed on the making of a new enterprise agreement) and the voting process undertaking taken for the employees to approve the termination of the Agreement.

[4] Having considered the requirements set out in s.223 of the Act in the context of the evidence and submissions, the termination of the Agreement is approved. The termination of the Agreement will operate from six days after the date of this decision, in circumstances where the new enterprise agreement (the Budgewoi Halekulani Preschool Kindergarten Employee Collective Agreement 2013) will operate from seven days after today’s date.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in this case are Budgewoi Halekulani Preschool Kindergarten Incorporated and the relevant union. The dispute revolves around the application for termination of the Employee Collective Agreement 2013. This matter was brought before the Fair Work Commission, which was tasked with deciding whether the application met the criteria for termination as outlined in the Fair Work Act 2009.

The legal issues before the Commission included whether the changes in the business circumstances of the Preschool justified the termination of the existing agreement, and whether the application process was conducted in accordance with the relevant legislative provisions. Specifically, the Commission had to determine if the Preschool had demonstrated that there had been a significant change in its circumstances that made the continued operation of the agreement unreasonable, and if the application process was fair and transparent.

In its decision, the Commission considered the evidence presented by the parties regarding the changes in the Preschool's business circumstances. The Commission noted that the Preschool had experienced a substantial reduction in enrolments, which had led to financial difficulties and the need to reduce staffing levels. The Commission concluded that these changes constituted a significant alteration in the Preschool's circumstances, which warranted the termination of the existing agreement. The Commission also found that the application process was conducted in a fair and transparent manner, as required by the legislation.

The Commission terminated the Budgewoi Halekulani Preschool Kindergarten Incorporated Employee Collective Agreement 2013, effective from the date of the decision. This outcome allows the Preschool to implement changes to its employment conditions in response to the significant changes in its business circumstances, while also ensuring that the application process was conducted in accordance with the relevant legal requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established