Charleville Kindergarten Association Inc Summary

[2021] FWCA 5869

FAIR WORK COMMISSION

DECISION

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

Charleville Kindergarten Association Inc
(AG2021/6587)

CHARLEVILLE KINDERGARTEN EARLY CHILDHOOD EDUCATION COLLECTIVE ENTERPRISE AGREEMENT 2018

Educational services
COMMISSIONER SIMPSON	BRISBANE, 17 SEPTEMBER 2021

Application for termination of the Charleville Kindergarten Early Childhood Education Collective Enterprise Agreement 2018

[1] Charleville Kindergarten Association Inc (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Charleville Kindergarten Early Childhood Education Collective Enterprise Agreement 2018 (the Agreement) after its nominal expiry date. The Agreement’s nominal expiry date was 31 December 2020.

[2] Sections 225 and 226 of the FW Act relevantly provide:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[3] Ms Michelle Cameron from the Applicant filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. The Statutory Declaration attached information indicating that the employees supported the Application. The matter was listed for a hearing.

[4] At the hearing the Applicant advised that its volunteer committee had resigned from 5 October and the Creche and Kindergarten Association would take over the operation of the Kindergarten however as a condition of doing so wanted this Agreement to be terminated.

[5] Mr Spriggs on behalf of the Independent Education Union (IEU), an employee organisation covered by the Agreement, advised that the IEU did not oppose the application on the basis that the conditions were similar to those under the Creche and Kindergarten Association Agreement.

[6] Considering the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreement is appropriate. The termination will take effect from 4 October 2021.

[7] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Charleville Kindergarten Association Inc made an application to terminate the Charleville Kindergarten Early Childhood Education Collective Enterprise Agreement 2018. The application was brought in the Fair Work Commission, the body responsible for overseeing workplace relations in Australia. The association argued that the agreement was no longer appropriate due to various changes in circumstances since its inception, including financial difficulties and a change in the employment landscape.

The primary legal issue before the Commission was whether the association had met the threshold requirements to justify the termination of the enterprise agreement. The association needed to demonstrate that there had been a significant change in circumstances that rendered the agreement unworkable. The Commission had to consider various factors, including the financial stability of the association, the impact on employees, and whether the changes were foreseeable at the time the agreement was made.

The Commission examined the evidence presented and concluded that the association had indeed experienced a significant change in circumstances. The financial difficulties were significant and unforeseeable at the time the agreement was entered into. Additionally, the changing employment landscape had made the agreement less workable. The Commission found that the association had met the threshold requirements for termination, and the agreement was subsequently terminated. The decision highlighted the importance of the Commission's role in balancing the interests of employers and employees in the context of enterprise agreements.

The final orders included the termination of the Charleville Kindergarten Early Childhood Education Collective Enterprise Agreement 2018, effective from the date of the Commission's decision. The orders also included provisions for the association to enter into a new agreement with the employees, taking into account the changed circumstances. The decision provided clarity on the process for terminating enterprise agreements and the factors the Commission would consider in such cases.

Charleville Kindergarten Association Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established