Harold Wheen Preschool

[2018] FWCA 6127

[2018] FWCA 6127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Harold Wheen Preschool
(AG2018/3501)

Harold Wheen Preschool (UnitingCare Children’s Services) St Clair Enterprise Agreement 2011-2013

Children’s services

VICE PRESIDENT CATANZARITI SYDNEY, 2 OCTOBER 2018

Application for termination of the Harold Wheen Preschool (UnitingCare Children’s Services) St Clair Enterprise Agreement 2011-2013.

[1] On 30 July 2018, Harold Wheen Preschool (Applicant) lodged an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (Act) to terminate the Harold Wheen Preschool (UnitingCare Children’s Services) St Clair Enterprise Agreement 2011-2013 [AE884155] (Agreement).

[2] The Agreement is a single enterprise agreement and its nominal expiry date is 31 August 2013.

[3] The relevant provisions of the Act are as follows:

“220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi‑enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

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.”

[4] On 3 September 2018, the Commission wrote to the Applicant and directed that it seek the views of the employees and employee organisations (if any) covered by the Agreement, and that such views be communicated to the Commission by 17 September 2018.

[5] On 11 September 2018, the Applicant confirmed that it had sent an email to all staff members covered by the Agreement, seeking their views on the application. The Applicant’s Representative, Ms Kimberley Howlett-Russell also declared on 11 September 2018 that no employee organisations are covered by the Agreement. No objection to the application was received from or on behalf of any parties.

[6] Based on the above and the statutory declarations of Ms Kimberley Howlett-Russell declared on 30 July 2018 and 11 September 2018 respectively, I am satisfied that the requirements in ss.220-223 of the Act in relation to termination of the Agreement have been complied with. I am therefore satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[7] The termination will operate from 2 October 2018.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE884155 PR700983>