Guppy's ELC Pty Ltd ATF The Parkross Family Trust T/A Guppy's Early Learning Centres

[2018] FWCA 887

[2018] FWCA 887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Guppy's ELC Pty Ltd ATF The Parkross Family Trust T/A Guppy's Early Learning Centres

(AG2017/4694)

GUPPYS EARLY LEARNING CENTRE ENTERPRISE AGREEMENT 2013

Educational services
COMMISSIONER SIMPSON	BRISBANE, 9 FEBRUARY 2018

Application for termination of the Guppys Early Learning Centre Enterprise Agreement 2013.

1. On 9 October 2017 Guppy's ELC Pty Ltd ATF The Parkross Family Trust T/A Guppy's Early Learning Centres (the Employer) filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Guppys Early Learning Centre Enterprise Agreement 2013 (the Agreement).

1. The Agreement is a single enterprise agreement and its nominal expiry date was 30 June 2015.

1. The relevant provisions of the Act are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a)    one or more of the employers covered by the agreement;

(b)   an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a)    the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

1. The Employer lodged an application as an application for approval for termination of an enterprise agreement after its nominal expiry dates under s.225 of the Act. However, the application form that was attached was a Form F24 Application for termination of an enterprise agreement pursuant to s.222. The application was not accompanied by the required statutory declaration.

1. On Wednesday 9 October 2017, United Voice sent correspondence to the Employer advising that that it did not oppose the termination of the relevant agreement, however that  the application in its current form appeared to be incomplete or incorrect. United Voice requested that the Employer file the appropriate accompanying statutory declaration with the Fair Work Commission (the Commission).

1. On Wednesday 25 October 2017, United Voice sent correspondence to the Commission advising that it had not received a response to its correspondence sent 9 October from the Employer.

1. On 9 November 2017, my chambers sent correspondence to the Employer requesting that it clarify its position on whether it was making an application under s.225 or under s.222 of the Act. The Commission did not receive a response to this correspondence.

1. On 30 November 2017, again my chambers sent correspondence to the Employer requesting that it confirm whether it was making an application under s.225 or s.222.

1. On 4 December 2017, the Employer’s representative sent correspondence to my chambers advising the Employer was making an application under s.225 Application for termination of an enterprise agreement after its nominal expiry date. Later that day, the Employer filed a Form F24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date.

1. On 4 December 2017 United Voice sent correspondence to my chambers advising that it had no objection to the Commission exercising its discretion to treat the application as having been made under s.225, and repeated its view expressed on 25 October that it did not oppose the termination of the relevant agreement.

1. On 21 December 2017, the matter was listed for an e-hearing.

1. I am satisfied that it is not contrary to the public interest to terminate the agreement and that termination of the agreement is appropriate having regard to the circumstances of the employees and employer.

1. I therefore determine that the Agreement shall be terminated pursuant to section 226 of the Act. In accordance with section 227 of the Act, the termination of the agreement shall operate from 9 February 2018.

COMMISSIONER

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