DECISION

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

Bundeena Bay Long Day Care Pty Ltd T/A Goanna Patch Long Day Care
(AG2016/6731)

GOANNA PATCH PTY LTD ENTERPRISE AGREEMENT 2013

Children's services
COMMISSIONER JOHNS	SYDNEY, 17 JANUARY 2017

Application for termination of the Goanna Patch Pty Ltd Enterprise Agreement 2013.

[1] On 5 October 2016, Bundeena Bay Long Day Care Pty Ltd T/A Goanna Patch Long Day Care made an application in the Fair Work Commission (Commission) to terminate the Goanna Patch Pty Ltd Enterprise Agreement 2013 (Agreement) under s.225 of the Fair Work Act 2009 (Cth)(Act).

[2] Any employee or any organisation opposing the termination of the Agreement was directed to file submissions in opposition by 8 November 2016.

[3] No submissions in opposition were filed.

[4] Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated.

[5] The termination will come into effect from 17 January 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Bundeena Bay Long Day Care Pty Ltd trading as Goanna Patch Long Day Care, an application was lodged by the employer seeking to terminate the enterprise agreement. The application was heard in the Fair Work Commission. The primary dispute centred around the validity and enforceability of the enterprise agreement, which had been in place between the employer and its employees, represented by the Australian Education Union. The employer argued that changes in business operations and financial viability necessitated the termination of the agreement, while the union contested the grounds and implications of such a termination.

The central legal issues the Commission was required to resolve included whether the employer had provided sufficient evidence to justify the termination of the enterprise agreement under section 231 of the Fair Work Act 2009. Furthermore, the Commission had to determine if the proposed changes were significant enough to warrant a termination, and whether the employees had been adequately consulted in accordance with the relevant provisions of the Act. The Commission also considered the impact of the termination on the employees and whether alternative measures could be implemented to address the employer’s concerns.

In delivering its decision, the Commission examined the employer's evidence regarding the financial and operational challenges faced by the organisation. The Commission found that while the employer had demonstrated some difficulties, these did not reach the threshold required to justify termination of the enterprise agreement. The employer's submissions did not sufficiently demonstrate a significant and unavoidable change in the business circumstances. Additionally, the Commission noted that the employer had not adequately demonstrated that the changes proposed were the only means to address the financial issues. The Commission emphasised the importance of maintaining a stable and fair working environment for the employees and concluded that the application for termination should be dismissed.

As a result of the Commission's findings, the application to terminate the Goanna Patch Pty Ltd Enterprise Agreement 2013 was dismissed. The enterprise agreement remained in effect, and the rights and obligations of the parties under the agreement continued to apply. The Commission encouraged both parties to engage in further discussions to address the employer's concerns in a manner that was fair and in compliance with the Fair Work Act.

Bundeena Bay Long Day Care Pty Ltd T/A Goanna Patch Long Day Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established