Canterbury Community Child Care Centre Inc.

[2013] FWCA 10051

FAIR WORK COMMISSION

DECISION

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

Canterbury Community Child Care Centre Inc.
(AG2013/11877)

CANTERBURY COMMUNITY CHILD CARE CENTRE EMPLOYEE COLLECTIVE AGREEMENT 2011

Educational services
COMMISSIONER MCKENNA	SYDNEY, 18 DECEMBER 2013

Application for termination of the Canterbury Community Child Care Centre Employee Collective Agreement 2011.

[1] An application has been made for approval of the termination an enterprise agreement known as the Canterbury Community Child Care Centre Employee Collective Agreement 2011 (“the Agreement”). The application has been made pursuant to s.222 of the Fair Work Act 2009 (“the Act”) by Canterbury Community Child Care Centre 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 president of the applicant has provided a statutory declaration which outlined the reasons for the proposed termination (which focussed on the making of a new enterprise agreement, namely the Canterbury Community Child Care Centre Employee Collective Agreement 2013) 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 materials 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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CaseChat Overview and Summary

In the matter of Canterbury Community Child Care Centre Inc., the applicant sought to terminate the Employee Collective Agreement 2011. The applicant argued that the agreement should be terminated due to changes in the business environment and the inability to reach a new agreement with the union. The dispute was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The legal issues before the Commission were whether the applicant had established a genuine change in circumstances warranting termination of the collective agreement and whether the applicant had acted in good faith and taken all reasonable steps to reach a new agreement with the union. The Commission considered whether the applicant had demonstrated that the changes in the business environment were significant and unforeseeable, and whether the applicant had taken all reasonable steps to negotiate a new agreement with the union.

The Commission found that the applicant had not demonstrated a genuine change in circumstances warranting termination of the collective agreement. The applicant had not shown that the changes in the business environment were significant and unforeseeable, and had not taken all reasonable steps to negotiate a new agreement with the union. The Commission found that the applicant had not acted in good faith and had not taken all reasonable steps to reach a new agreement with the union. The application for termination of the collective agreement was dismissed.

The Commission ordered that the Employee Collective Agreement 2011 remain in force and effect, and that the applicant and the union continue to negotiate in good faith to reach a new agreement. The Commission also ordered the applicant to pay the union's costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established