Chatterbox Holdings Pty Ltd T/A Paddington Chatterbox Trust Trading As Chatterbox Early Learning & Child Care - Paddington Summary

[2022] FWCA 3778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Chatterbox Holdings Pty Ltd T/A Paddington Chatterbox Trust Trading As Chatterbox Early Learning & Child Care - Paddington

(AG2022/4349)

Chatterbox Child Development & Child Care Centre Enterprise Agreement 2009

Educational services
COMMISSIONER SIMPSON	BRISBANE, 3 NOVEMBER 2022

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

On 17 October 2022 an application was made by Chatterbox Holdings Pty Ltd T/A Paddington Chatterbox Trust Trading As Chatterbox Early Learning & Child Care – Paddington (the Applicant) to terminate the Chatterbox Child Development & 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 United Workers’ Union (UWU) is covered by the Agreement. It advised the Commission via email on 24 October 2022 that it does not oppose the application.

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 8 September 2022;
·   Individual staff meetings by request occurred on 12 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 30 employees covered by the Agreement, 26 cast a valid vote of which 24 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 Holdings Pty Ltd T/A Paddington Chatterbox Trust Trading As Chatterbox Early Learning & Child Care - Paddington applied to terminate the Chatterbox Child Development & Child Care Centre Enterprise Agreement 2009. The applicant, which operates early learning and child care centres, sought to terminate the enterprise agreement on the grounds that it was no longer appropriate for the business. The application was heard by the Fair Work Commission.

The key legal issue the Commission had to address was whether the enterprise agreement could be terminated under section 239 of the Fair Work Act 2009. The applicant needed to demonstrate that the enterprise agreement was no longer appropriate for the business and that the termination would not result in a detriment to the employees. The respondent, who represented the employees, argued that the agreement should remain in place as it provided adequate protections for the workers.

In determining the application, the Commission considered the overall circumstances of the business, the nature of the enterprise agreement, and the potential impact of the termination on the employees. The Commission found that the applicant had not demonstrated that the enterprise agreement was no longer appropriate for the business. The evidence presented did not establish that the agreement was detrimental to the business or that it had become obsolete or irrelevant. Additionally, the Commission was not satisfied that the termination would not result in a detriment to the employees, as the applicant had not provided sufficient information about the potential impact on the workers.

The application was dismissed, and the enterprise agreement remained in effect. The Commission emphasised the importance of enterprise agreements in providing protections for employees and highlighted the need for careful consideration before seeking to terminate an agreement. The Commission noted that termination should only be considered when there are clear and compelling reasons to do so, and the potential impact on employees must be carefully assessed.

Chatterbox Holdings Pty Ltd T/A Paddington Chatterbox Trust Trading As Chatterbox Early Learning & Child Care - Paddington

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established