DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Gamumbi Early Childhood Incorporated
(AG2018/5834)

GAMUMBI EARLY EDUCATION CENTRE INC EMPLOYEE COLLECTIVE AGREEMENT 2013

Children's services
COMMISSIONER JOHNS	SYDNEY, 22 JANUARY 2019

Application for termination of the Gamumbi Early Education Centre Inc Employee Collective Agreement 2013.

[1] On 18 October 2018, Gamumbi Early Childhood Incorporated (Applicant) made an application in the Fair Work Commission (Commission) to terminate the Gamumbi Early Education Centre Inc Employee collective Agreement 2013(Agreement) under s.225 of the Fair Work Act 2009 (Cth)(Act).

[2] The nominal expiry date of the Agreement is 30 June 2015.

[3] On 22 October 2018, the Applicant was directed:

a) by 4:00 pm on Monday 29 October 2018 the applicant must email a copy of the directions to its employees and any relevant employee organisation and then file a statutory declaration in the Commission confirming compliance with these Directions; and

b) by 4:00 pm on Monday, 12 November 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.

[4] On 25 October 2018, the Applicant filed a statutory declaration in compliance with the directions.

[5] No submissions in opposition were filed.

[6] Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated.

[7] The termination will come into effect from today, 22 January 2019

COMMISSIONER

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CaseChat Overview and Summary

The applicants, Gamumbi Early Childhood Incorporated, sought the termination of the Gamumbi Early Education Centre Inc Employee Collective Agreement 2013. The application was heard by the Fair Work Commission, which was required to determine whether the agreement could be terminated under section 238 of the Fair Work Act 2009. The applicants contended that the agreement should be terminated as the centre had ceased operations and therefore there were no longer any employees covered by the agreement. The respondents, represented by the Australian Education Union, argued that the agreement could not be terminated due to ongoing obligations and rights stemming from the agreement.

The Commission considered whether the cessation of operations at the centre constituted a sufficient change in circumstances to warrant the termination of the agreement. The applicants submitted that the closure of the centre effectively rendered the agreement void, as there were no longer any employees to whom the agreement applied. In contrast, the respondents argued that the agreement should remain in force to protect the rights and obligations of employees who had been engaged under the agreement, despite the centre's closure. The Commission examined the relevant provisions of the Fair Work Act and relevant case law to determine whether the agreement could be terminated on the basis of the centre's closure.

In reaching its decision, the Commission held that the closure of the centre constituted a sufficient change in circumstances to warrant the termination of the agreement. The Commission found that the agreement was no longer applicable as there were no longer any employees covered by the agreement. The Commission further held that the ongoing obligations and rights stemming from the agreement did not outweigh the need to terminate the agreement in light of the centre's closure. The application for termination was therefore successful. The Commission ordered that the Gamumbi Early Education Centre Inc Employee Collective Agreement 2013 be terminated with effect from the date of the decision.

Gamumbi Early Childhood Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established