Hills Educational Foundation Ltd

[2021] FWCA 5547

[2021] FWCA 5547

FAIR WORK COMMISSION

DECISION

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

Hills Educational Foundation Ltd
(AG2021/5914)

HILLS EDUCATIONAL FOUNDATION LIMITED - UNION COLLECTIVE AGREEMENT 2016

Educational services
COMMISSIONER SIMPSON	BRISBANE, 7 SEPTEMBER 2021

Application for termination of the Hills Educational Foundation Limited - Union Collective Agreement 2016.

[1] Hills Educational Foundation Ltd (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Hills Educational Foundation Limited - Union Collective Agreement 2016 (the Agreement) after its nominal expiry date. The Agreement is a single enterprise agreement, and its nominal expiry date was 31 May 2017.

[2] 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.”

[3] A statutory declaration of Joseph Marinov, Chief Executive Officer, declared on 29 June 2021 was filed in the Fair Work Commission with the application.

[4] On 9 July 2021 the Independent Education Union (IEU) advised in writing that it objected to the termination of the Agreement.

[5] The matter was listed for a directions hearing on 15 July 2021. The IEU was directed to file with the Commission and serve on the Applicant, a list of its concerns by the following day. On 16 July 2021, the IEU provided its list of concerns and the Applicant provided a response on 21 July 2021.

[6] The matter was listed for a conference by telephone on 21 July 2021. During conference, the Applicant agreed to provide undertakings in the form of a letter, which was filed on 29 July 2021 and can be found at Appendix A of this decision.

[7] On 28 August 2021, the IEU confirmed in writing that on the basis of the undertakings contained in the employer’s letter dated 28 July 2021, the IEU did not maintain its objection to the termination of the Agreement.

[8] On the basis of the material before me, 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.

[9] I, therefore, determine that the Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the agreement shall operate from 13 August 2020.

COMMISSIONER

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Appendix A