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

Printed by authority of the Commonwealth Government Printer

In the matter of Forestville Preschool Kindergarten T/A UnitingCare Forestville Preschool, the applicant sought to terminate the existing enterprise agreement that governed the terms and conditions of employment for its employees. The case was heard by the Fair Work Commission, which is the federal workplace relations tribunal with jurisdiction over matters such as the termination of enterprise agreements. The primary legal issue before the Commission was whether the application to terminate the agreement complied with the statutory requirements set out in the Fair Work Act 2009. Specifically, the Commission had to determine if the applicant had provided the requisite 12 months’ written notice of the intended termination and if the termination was in accordance with the provisions of the Act.

The Commission found that the applicant had indeed provided the necessary 12 months’ written notice of its intention to terminate the agreement, as required by section 234 of the Fair Work Act. However, the Commission also noted that the applicant had not demonstrated that it had made a genuine effort to reach an agreement with the relevant employee representatives regarding the terms of a new enterprise agreement. This was a critical factor in the Commission’s decision, as section 235 of the Act requires that, before an agreement can be terminated, the party seeking termination must have made a genuine attempt to negotiate in good faith. The Commission concluded that the applicant had not met this requirement, and therefore the application for termination was denied.

The Commission’s decision was grounded in the statutory framework provided by the Fair Work Act, which emphasises the importance of good faith bargaining and the preservation of existing agreements unless compelling reasons for termination are demonstrated. The Commission held that, in this instance, the applicant had not shown that it had genuinely attempted to negotiate with the employee representatives. Consequently, the application for termination was dismissed, and the existing enterprise agreement remained in effect. The Commission did not make any further orders beyond this determination.

Forestville Preschool Kindergarten T/A UnitingCare Forestville Preschool

DECISION

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Background to the litigation

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Reasons for decision

Legal Principle Established