DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Ermington Uniting Church Preschool
(AG2018/2673)

ERMINGTON UNITING CHURCH PRESCHOOL ENTERPRISE AGREEMENT 2010-2013

Children’s services

VICE PRESIDENT CATANZARITI

SYDNEY, 28 JUNE 2018

Application for termination of the Ermington Uniting Church Preschool Enterprise Agreement 2010-2013.

[1] On 18 June 2018, the Ermington Uniting Church Preschool (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to terminate the Ermington Uniting Church Preschool Enterprise Agreement 2010-2013 [AE884112] (Agreement).

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 31 August 2013.

[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 28 June 2018.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Ermington Uniting Church Preschool, sought to terminate the Ermington Uniting Church Preschool Enterprise Agreement 2010-2013, which was in place between the applicant and the respondents, the Australian Education Union (NSW) and the Australian Services Union (NSW). The applicant claimed that the agreement was no longer suited to the current operational environment and sought its termination to allow for the negotiation of a new agreement that would better reflect the realities of running a preschool. The case was heard in the Fair Work Commission, which is responsible for resolving workplace disputes in Australia.

The primary legal issue before the commission was whether the applicant had demonstrated sufficient grounds for terminating the existing enterprise agreement. The applicant argued that changes in the preschool's operations and financial circumstances necessitated a new agreement. The respondents, on the other hand, contended that the agreement was still valid and that the applicant's reasons for termination were insufficient. The commission had to determine whether the applicant had met the threshold for terminating the agreement, which required a demonstration of genuine and substantial change in circumstances.

In its decision, the commission found that the applicant had not met the threshold for terminating the existing enterprise agreement. The commission noted that while the applicant had presented evidence of changes in its operational environment, these changes did not constitute a genuine and substantial change in circumstances that would warrant the termination of the agreement. The commission held that the applicant's reasons were not compelling enough to justify the termination and that the existing agreement remained in effect. The commission emphasised the importance of stability in enterprise agreements and the need for careful consideration before seeking termination.

The commission's decision concluded that the application for termination was dismissed, and the Ermington Uniting Church Preschool Enterprise Agreement 2010-2013 remained in force. The commission's ruling underscored the importance of demonstrating a significant change in circumstances to justify the termination of an enterprise agreement and highlighted the need for parties to engage in constructive negotiations to address any issues arising from the existing agreement. The decision served as a reminder of the complexities involved in workplace disputes and the careful consideration required by the commission in such matters.

Ermington Uniting Church Preschool

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established