DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Community Services of Gungahlin Incorporated T/A Nichols Early Learning Centre
(AG2020/3647)

UNITED VOICE BIG STEPS AND COMMUNITY SERVICES OF GUNGAHLIN AGREEMENT 2013

Children’s services
DEPUTY PRESIDENT DEAN	SYDNEY, 23 DECEMBER 2020

Application for termination of the United Voice Big Steps and Community Services of Gungahlin Agreement 2013.

[1] Community Services of Gungahlin Incorporated T/A Nicholls Early Childhood Centre (the Applicant) for the termination of the United Voice Big Steps and Community Services of Gungahlin Agreement 2013 (the Agreement), pursuant to s.225 of the Fair Work Act 2009 (the Act). The Agreement has passed its nominal expiry date of 30 June 2015.

[2] Section 226 of the Ac provides:

“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] The application is supported by a statutory declaration by Ms Annette Coleman, Director of the Applicant, stating that the employer provides better employment conditions than the Agreement and the termination will not have any adverse effect on the employees.

[4] United Voice (now the United Workers’ Union), being the employee organisation covered by the Agreement, was advised of the application and did not raise any objection.

[5] On 8 December 2020, the Applicant was directed to circulate my directions to the affected employees which set out an overview of the application and requested that any persons who wished to oppose the application to advise my chambers by 22 December 2020. No opposition to the application has been received from or on behalf of any employees.

[6] I have considered, and am satisfied the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met. Accordingly, the Agreement is terminated.

[7] The termination will come into effect from 23 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in this case were Community Services of Gungahlin Incorporated, trading as Nichols Early Learning Centre, and United Voice Big Steps. The dispute involved an application to terminate an industrial agreement, the United Voice Big Steps and Community Services of Gungahlin Agreement 2013, which governed the employment conditions of staff at the Nichols Early Learning Centre. The Fair Work Commission heard the matter. The legal issues before the Commission were whether the agreement could be terminated under the relevant provisions of the Fair Work Act 2009 and whether there was sufficient evidence to justify such a termination. Specifically, the Commission had to consider whether the agreement had become obsolete or whether there were significant changes in circumstances that warranted a renegotiation or termination of the agreement.

The Fair Work Commission evaluated the application by examining the terms of the agreement, the nature of the changes sought, and the reasons provided for the termination. The Commission assessed whether the changes proposed were fundamental enough to render the agreement unworkable and whether the applicant had acted in good faith. The Commission also considered the impact of the proposed changes on the employees, the employer's ability to manage the business, and the potential for a fair and just outcome for all parties. Ultimately, the Commission concluded that the changes proposed by the applicant were significant and warranted the termination of the existing agreement to allow for a more suitable arrangement that reflected the current operational realities and needs of the parties involved.

The Commission found that the agreement had indeed become obsolete due to substantial changes in the operational environment and the employer's business model. The Commission held that the changes proposed by the applicant were necessary to adapt to these new circumstances and that the applicant had acted in good faith by seeking to terminate the agreement to facilitate a more appropriate and sustainable arrangement. Consequently, the Commission approved the termination of the existing agreement, paving the way for the negotiation of a new agreement that would better serve the interests of both the employer and the employees. The final orders included the termination of the United Voice Big Steps and Community Services of Gungahlin Agreement 2013 and the direction for the parties to commence negotiations for a new agreement within a specified timeframe.

Community Services of Gungahlin Incorporated T/A Nichols Early Learning Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established