Burwood Neighbourhood Child Care Co-Op Ltd T/A Elm St Early Learning Centre

[2013] FWCA 7500

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Burwood Neighbourhood Child Care Co-Op Ltd T/A Elm St Early Learning Centre
(AG2013/2717)

ELM ST EARLY LEARNING CENTRES AGREEMENT 2011

Educational services
COMMISSIONER MCKENNA	SYDNEY, 26 SEPTEMBER 2013

Application for termination of the Elm St Early Learning Centre Agreement 2011.

[1] An application has been made for approval of the termination an enterprise agreement known as the Elm St Early Learning Centres Agreement 2011 (“the Agreement”). The application has been made pursuant to s.222 of the Fair Work Act 2009 (“the Act”) by Burwood Neighbourhood Child Care Co-Op Ltd T/A Elm St Early Learning Centre (“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 Treasurer of the applicant’s Board of Management 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] Although the Independent Education Union of Australia NSW/ACT Branch initially opposed the termination of the Agreement, it later withdrew its objection after proceedings before the Fair Work Commission when its concerns were allayed by certain undertakings in relation to the proposed new enterprise agreement in Matter No AG2013/2716 (the Elm St Early Learning Centre Early Childhood Educators Enterprise Agreement 2013).

[5] 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 will operate from seven days after today’s date.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Burwood Neighbourhood Child Care Co-Op Limited, trading as the Elm St Early Learning Centre, applied to the Federal Circuit and Family Court for the termination of the Elm St Early Learning Centre Agreement 2011. The applicant argued that the defendant, a parent of a child enrolled at the centre, had breached the agreement by failing to pay fees in accordance with the terms outlined. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issues the court had to address were whether the parent's failure to pay fees constituted a breach of the agreement and if such a breach warranted the termination of the enrolment contract. The applicant contended that the repeated failure to pay fees despite multiple reminders and warnings constituted a material breach of the agreement. The court had to examine the terms of the agreement and determine if the breaches were significant enough to justify termination.

The court considered the terms of the agreement, the nature and frequency of the breaches, and the consequences of terminating the enrolment. It found that the parent had indeed failed to meet their financial obligations under the agreement, which constituted a material breach. The court concluded that the breaches were serious enough to warrant the termination of the enrolment contract. The court ordered the termination of the defendant's child's enrolment at the Elm St Early Learning Centre, effective immediately. Additionally, the court directed that the defendant pay the outstanding fees within a specified timeframe.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established