Forestville Preschool Kindergarten T/A UnitingCare Forestville Preschool

[2019] FWCA 396

[2019] FWCA 396

FAIR WORK COMMISSION

DECISION

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

Forestville Preschool Kindergarten T/A UnitingCare Forestville Preschool
(AG2018/6309)

FORESTVILLE PRESCHOOL KINDERGARTEN ENTERPRISE AGREEMENT 2011-2013

Educational services
COMMISSIONER JOHNS	SYDNEY, 19 FEBRUARY 2019

Application for termination of the Forestville Preschool Kindergarten Enterprise Agreement 2011-2013.

[1] On 13 November 2018 Forestville Preschool Kindergarten T/A UnitingCare Forestville Preschool (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the Forestville Preschool Kindergarten Enterprise Agreement 2011-2013 (the Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement had a nominal expiry date of 31 December 2013.

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

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.

[3] The application was supported by a Statutory Declaration made on 13 November 2018 by Kimberley Howlett-Russell, Human Resources Business Partner for the Applicant. Ms Howlett-Russel declared that the following steps were taken by the applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a) On 21 August 2018, the Applicant held a staff meeting to discuss the information regarding the termination of the Agreement; and,

b) On 18 October 2018, the Applicant held a second staff meeting to discuss the enterprise agreement in detail including, providing staff with a detailed comparison document with differences; and,

c) Emailed all relevant documentation to staff, and

d) From 27 October 2018 to 30 October 2018 voting commenced.

[4] Ms Howlett-Russell also declared that of the 19 employees covered by the Agreement, 19 cast a valid vote and all 19 voted to terminate the Agreement.

[5] On 15 November 2018 the Commission directed that:

a) by 4:00 pm Thursday 22 November 2018 the Applicant must email a copy of its Directions to its employees and any relevant employee organisation;

b) by 4:00 pm Thursday 29 November 2018 a director or officer of the applicant must file in the Commission and serve on any relevant employee organisation, a statutory declaration confirming compliance with these Directions; and

c) by 4:00 pm Thursday 13 December 2018 any employee or any organisation which opposes the termination of the Agreement must file in the Commission any submissions, written statements and documents they rely upon in opposition to the Agreement being terminated.

[6] On 22 November 2018, Mr Rod Nadwie-Smith for the Applicant made a Statutory Declaration to declare that the Directions issued by the Commission on 15 November 2018 had been adhered to and served upon all employees of the Applicant, United Voice and the Independent Education Union of Australia (IEUA).

[7] No submissions in opposition were filed.

[8] Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223 of the Act have been met.

[9] In accordance with s.224 of the Act, the termination will come into effect today, 19 February 2019.

COMMISSIONER

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