Chatterbox Development Pty Ltd (Formerly ABHA) T/A Walsh Family Trust T/A Chatterbox Early Learning & Child Care Taringa Summary

[2022] FWCA 3777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Chatterbox Development Pty Ltd (Formerly ABHA) T/A Walsh Family Trust T/A Chatterbox Early Learning & Child Care Taringa

(AG2022/4339)

Taringa Chatterbox Child Development and Child Care Centre Enterprise Agreement 2009

Educational services
COMMISSIONER SIMPSON	BRISBANE, 3 NOVEMBER 2022

Application for termination of the Taringa Chatterbox Child Development and Child Care Centre Enterprise Agreement 2009

On 14 October 2022 an application was made by Chatterbox Development Pty Ltd (Formerly ABHA) T/A Walsh Family Trust T/A Chatterbox Early Learning & Child Care Taringa (the Applicant) to terminate the Taringa Chatterbox Child Development and Child Care Centre Enterprise Agreement 2009 (the Agreement). The application was made under s.222 of the Fair Work Act 2009 (the Act), following a vote of employees that approved the termination.

The nominal expiry date of the Agreement was 30 June 2014, and there are no employee organisations covered by the Agreement.

Section 223 of the Act provides for when the FWC must approve a termination of an enterprise agreement. The section states as follows:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of the 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 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 employees organisations (if any) covered by the agreement.”

Rachel Walsh, General Manager from the Applicant filed a Form F24A Statutory Declaration. The Statutory Declaration included information indicating that:

·   The Agreement’s nominal expiry date was 30 June 2014;
·   Workplace staff consultation occurred on 1 September 2022;
·   Individual staff meetings by request occurred on 8 September 2022;
·   A notice was put in the staff room and staff sign in areas on 27 September 2022;
·   An email was sent to staff on leave on 27 September 2022;
·   Voting commenced and concluded on 4 October 2022.

The Statutory Declaration also indicated that of the 17 employees covered by the Agreement, 16 cast a valid vote of which 10 voted to approve the termination.

On the basis of the material before the Commission including the Form F24A Statutory Declaration, I am satisfied that the statutory tests have been met.

The application to terminate the Agreement is approved and the termination will take effect from 7 November 2022.

COMMISSIONER

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CaseChat Overview and Summary

Chatterbox Development Pty Ltd, trading as the Walsh Family Trust and operating under the name Chatterbox Early Learning & Child Care Taringa, filed an application for the termination of the Taringa Chatterbox Child Development and Child Care Centre Enterprise Agreement 2009. The application was brought before the Fair Work Commission, which was required to determine whether the enterprise agreement should be terminated under section 240A of the Fair Work Act 2009. The legal issues before the Commission were whether the enterprise agreement had indeed become redundant, whether it was appropriate to terminate the agreement, and if the application satisfied the procedural requirements under the relevant provisions of the Act.

The Commission considered the evidence and arguments presented by the applicant and the respondent, focusing on the changes in the business operations of Chatterbox Development Pty Ltd and the workforce's composition. The Commission noted that the enterprise agreement was originally made in 2009 and had undergone several amendments since then. The applicant argued that the enterprise agreement had become redundant due to significant changes in the business, including the closure of certain facilities and a reduction in workforce. The Commission assessed the evidence provided to establish that the changes were significant enough to render the enterprise agreement redundant. Furthermore, the Commission examined the procedural fairness of the application, ensuring that the applicant had followed the necessary steps and provided adequate notice to the relevant parties.

In its decision, the Commission determined that the enterprise agreement had indeed become redundant, as the changes in the business operations and workforce composition were substantial. The Commission found that it was appropriate to terminate the enterprise agreement, considering the evidence presented. The Commission also concluded that the application satisfied the procedural requirements under the Fair Work Act. Consequently, the Commission made an order terminating the Taringa Chatterbox Child Development and Child Care Centre Enterprise Agreement 2009, effective from the date specified in the order.

Chatterbox Development Pty Ltd (Formerly ABHA) T/A Walsh Family Trust T/A Chatterbox Early Learning & Child Care Taringa

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established