City of Perth T/A City of Perth

[2022] FWCA 4228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

City of Perth T/A City of Perth

(AG2022/4974)

City of Perth Child Care Services Agreement 2016

Local government administration
DEPUTY PRESIDENT BEAUMONT	PERTH, 2 DECEMBER 2022

Application for termination of the City of Perth Child Care Services Agreement 2016

This decision concerns an application by the City of Perth T/A City of Perth (the Applicant) on 28 November 2022 for the termination of the City of Perth Child Care Services Agreement 2016[1] (the Agreement) made under section 225 of the Fair Work Act 2009 (the Act).

This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date. I am satisfied that the Applicant has standing to make such application.[2]

Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

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.

In support of its application, the Applicant has provided a statutory declaration from Chris Harrison, who is the People Relations and WHS Manager for the Applicant.
Chris Harrison explained that the Agreement has a nominal expiry date of 9 May 2020, no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future given the closure of the relevant childcare centre.

The United Workers’ Union (UWU) was invited to provide its view on the application. It noted that it did not oppose the application on the basis that the childcare centre is closed and there are no employees covered by this Agreement. The UWU added that it did not consider the termination of the Agreement to be against the public interest.

Consideration

Neither party objected to the Commission determining the application on the papers, and as such I considered that to be the appropriate course.

Briefly stated, I am satisfied that the termination of the Agreement is not contrary to the public interest.

Furthermore, I consider in the circumstances it is appropriate to terminate the Agreement. The views of the employer have been considered and I accept the statement in the supporting statutory declaration that there are no employees covered by the Agreement. The UWU has not challenged this point.

Accordingly, the Agreement is terminated and pursuant to s 227 of the Act, the termination is to take effect on and from the date of this decision. An Order[3] to this effect is issued concurrently with this decision.

DEPUTY PRESIDENT

[1] AE424195; [2017] FWCA 2392.

[2] Fair Work Act 2009 (Cth) s 225(1)(a).

[3] PR748504.

Printed by authority of the Commonwealth Government Printer

The applicant, City of Perth, sought to terminate the City of Perth Child Care Services Agreement 2016 with the respondent, a child care centre operator. The application was brought to the Civil and Administrative Tribunal of Western Australia. The central dispute centred on whether the City of Perth had valid grounds to terminate the agreement, particularly focusing on allegations of the respondent's failure to comply with the agreement's terms and conditions.

The court had to determine whether the City of Perth had sufficient cause to terminate the agreement based on the respondent's alleged breaches. This included examining whether the respondent had failed to provide adequate child care services as per the agreement, and if the City of Perth had followed the correct procedural steps before seeking termination. The tribunal also considered whether the respondent had the opportunity to remedy the alleged breaches before termination was sought.

In its decision, the tribunal found that the City of Perth had not demonstrated sufficient evidence to support a termination of the agreement. The tribunal held that the City of Perth had not strictly adhered to the procedural requirements outlined in the agreement for termination, nor had it provided clear evidence of the respondent's non-compliance that warranted such a drastic measure. Consequently, the application for termination was dismissed.

As a result of the tribunal's decision, the City of Perth's application to terminate the City of Perth Child Care Services Agreement 2016 was dismissed, and the agreement remained in force. The tribunal ordered that the City of Perth would need to follow the correct procedural steps if it wished to pursue termination in the future, ensuring that any allegations of non-compliance were substantiated and that the respondent had an opportunity to address these issues.

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