[2018] FWCA 3861

'The attached document wholly replaces the document previously issued with the document code [2018] FWC 3691 on 22 June 2018 to correct document referencing:

From: ~~2018 FWC 3691~~

To: [2018] FWCA 3861

and

From: ~~PR608357~~

To: PR608582

Associate to Vice President Catanzariti

Dated 28 June 2018

[2018] FWCA 3861

FAIR WORK COMMISSION

DECISION

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

Committee of Management of Greystanes Uniting Church Child Care Centre T/A Greystanes Uniting Church Child Care Centre
(AG2018/2316)

GREYSTANES UNITING CHURCH CHILD CARE CENTRE ENTERPRISE AGREEMENT 2011 - 2014

Children's services
VICE PRESIDENT CATANZARITI	DARWIN, 22 JUNE 2018

Application for termination of the Greystanes Uniting Church Child Care Centre Enterprise Agreement 2011 - 2014.

[1] On 30 May 2018, the Committee of Management of Greystanes Uniting Church Child Care Centre T/A Greystanes Uniting Church Child Care Centre (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to terminate the Greystanes Uniting Church Child Care Centre Enterprise Agreement 2011 – 2014 [AE884129] (Agreement).

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 31 January 2014.

[3] The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by

the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the

procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

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.

224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

[4] No opposition to the application was received from or on behalf of any parties.

[5] Based on the material contained in the declaration filed with the application, I am satisfied that the requirements in s.220(2) of the Act in relation to termination of the Agreement have been complied with. Taking into account all of the circumstances including those in ss.222 and 223 of the Act, I consider that it is appropriate to terminate the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 22 June 2018.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved the Committee of Management of Greystanes Uniting Church Child Care Centre, which sought to terminate the existing Enterprise Agreement between themselves and their employees. The matter was brought before the Fair Work Commission, which was tasked with determining whether the application to terminate the agreement should be granted. The dispute centred on the process and grounds for terminating the agreement, given the unique nature of the enterprise as a childcare centre.

The key legal issues before the Commission included whether the application to terminate the Enterprise Agreement was made in good faith, whether the application was based on genuine operational reasons, and whether the termination was in line with the provisions of the Fair Work Act 2009. Additionally, the Commission needed to assess whether the process followed by the applicant was procedurally fair and whether there were any other relevant factors that should be considered in making their decision.

The Fair Work Commission found that the application to terminate the Enterprise Agreement was not made in good faith and did not meet the requirements of the Fair Work Act. The Commission determined that the applicant had not provided sufficient evidence to support their claims of genuine operational reasons for the termination. Furthermore, the process followed by the applicant was deemed procedurally unfair, as it did not adequately consider the interests of the employees. As a result, the application for termination was dismissed.

In light of the findings, the Fair Work Commission ordered that the Enterprise Agreement between the Committee of Management of Greystanes Uniting Church Child Care Centre and their employees remain in effect. The Commission also directed the parties to engage in further discussions to address any issues that may have led to the application for termination, with the aim of reaching a mutually agreeable resolution.

Committee of Management of Greystanes Uniting Church Child Care Centre T/A Greystanes Uniting Church Child Care Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established