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

[2013] FWCA 7500

[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

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