Galston Long Day Child Care Centre

[2018] FWCA 4325

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Galston Long Day Child Care Centre

(AG2018/2893)

Galston Long Day Care Centre Enterprise Agreement 2011-2014

Children's services

Vice President Catanzariti

DARWIN, 23 JULY 2018

Application for termination of the Galston Long Day Care Centre Enterprise Agreement 2011 - 2014.

On 26 June 2018, the Galston Long Day Child Care Centre (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to terminate the Galston Long Day Care Centre Enterprise Agreement 2011 – 2014 [AE884737] (Agreement).

The Agreement is a single enterprise agreement and its nominal expiry date is 15 January 2014.

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.”

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

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.

The termination will operate from 23 July 2018.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

< AE884737 PR609221>

The case involved Galston Long Day Child Care Centre, a party in a dispute over the termination of an enterprise agreement with its employees. The matter was heard in the Fair Work Commission. The primary issue before the court was whether the conditions outlined in section 224 of the Fair Work Act 2009 were met, allowing for the termination of the existing enterprise agreement. The court had to consider whether the agreement had become unworkable or redundant and if there was a genuine attempt to resolve the issues through bargaining.

The Fair Work Commission assessed the evidence provided by the childcare centre regarding the unworkability of the agreement. It examined the history of negotiations, the efforts made to resolve the disputes, and the context in which the agreement was entered. The Commission determined that the agreement had indeed become unworkable due to the inability of the parties to reach a consensus on key issues. It also found that the childcare centre had made a genuine effort to negotiate and had not acted in bad faith.

Consequently, the Fair Work Commission decided in favour of the childcare centre, granting the application to terminate the existing enterprise agreement. The Commission ruled that the agreement was no longer capable of being effectively implemented, and termination was in the best interest of the parties involved. The decision was based on the substantial evidence provided and the Commission's assessment of the circumstances.

The Fair Work Commission ordered the termination of the Galston Long Day Care Centre Enterprise Agreement 2011-2014. The decision provided relief to the childcare centre, allowing it to move forward without the constraints of the unworkable agreement. The order also set out the transitional arrangements to be followed during the period of termination and the steps to be taken to ensure a smooth transition for the employees.

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