Indooroopilly Kindergarten Inc T/A Indooroopilly Kindergarten

[2018] FWCA 39

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Indooroopilly Kindergarten Inc T/A Indooroopilly Kindergarten

(AG2017/6334)

Indooroopilly Kindergarten Early Childhood Education Enterprise Agreement 2015

Educational services
COMMISSIONER BOOTH	BRISBANE, 8 JANUARY 2018

Application for termination of the Indooroopilly Kindergarten Early Childhood Education Enterprise Agreement 2015.

An application has been made under s.222 of the Fair Work Act 2009 (the Act) to terminate the Indooroopilly Kindergarten Early Childhood Education Enterprise Agreement 2015 (the Agreement). The nominal expiry date of the Agreement is 31 December 2017.

The Independent Education Union of Australia (IEUA) is an employee organisation which is covered by the Agreement.

The Employer provided a statutory declaration on 15 December 2017, advising that the termination of the Agreement is in accordance with a decision to transfer its operations and assets to the Creche and Kindergarten Association Ltd. The transfer is scheduled to occur at the end of ‘Term 1’, 2018, and will see the Employer’s employees being covered by the C&K Early Childhood Education Enterprise Agreement 2017 (the C&K Agreement). In its statutory declaration, the Employer confirmed that consultations were conducted between December 2016 and November 2017, and that following a secret ballot between 4 December 2017 and 6 December 2017, all four employees covered by the Agreement voted to approve the termination of the Agreement.

On 19 December 2017, my Associate wrote to the Employer and the IEUA, seeking further particulars regarding whether the employee organisation’s views on the termination application had been sought.

In correspondence to my Chambers on 20 December 2017, Mr David Quinn, representative for the Employer, provided further submissions to the effect the employees had been extensively consulted on the termination of the Agreement. Mr Quinn further noted that no employees had sought to involve the IEUA in the consultation process, and that the termination application had been brought to the IEUA’s attention with no response yet received to oppose the application.

Mr Quinn advised that a guarantee has been provided to employees that the terms of the Agreement will continue to be applied after its termination, until the C&K Agreement covers the employees.

In correspondence to my Chambers on 20 December 2017, the IEUA advised that, notwithstanding the submissions by Mr Quinn, it had been involved in discussions with its members on matters relating to the termination of the Agreement. In particular, the IEUA submitted that its members had sought advice on the application of the C&K Agreement. The IEUA noted that the C&K Agreement contains wages and conditions similar to the Agreement to be terminated. The IEUA confirmed it does not oppose the termination of the Agreement.

I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met.

The termination of the Agreement is approved with effect from today, 8 January 2018.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Indooroopilly Kindergarten Inc trading as Indooroopilly Kindergarten, sought to terminate the Indooroopilly Kindergarten Early Childhood Education Enterprise Agreement 2015. The matter was heard by the Fair Work Commission, with Commissioner Harper presiding. The respondent, the Queensland Teachers’ Union, represented the employees of the Kindergarten.

The primary legal issue before the Commission was whether the changes in circumstances since the agreement was made were such that it was no longer appropriate to continue the agreement. The Commission needed to consider the criteria for terminating an enterprise agreement, including whether there had been a significant change in circumstances and whether termination was in the national interest. The Commission also needed to consider whether the agreement could be terminated without prejudice to the employees.

The Commission found that there had been a significant change in circumstances since the agreement was made, including changes in the regulatory environment and the financial position of the Kindergarten. The Commission concluded that termination of the agreement was in the national interest and would not result in prejudice to the employees. The Commission further found that the agreement could be terminated without the need for the parties to reach a new agreement. Accordingly, the Commission ordered that the agreement be terminated.

The final orders of the Commission were that the Indooroopilly Kindergarten Early Childhood Education Enterprise Agreement 2015 be terminated with effect from the date of the Commission’s decision, and that the parties were to take such steps as were necessary to give effect to the termination of the agreement. The Commission also ordered that the termination of the agreement would not result in any prejudice to the employees, and that the agreement could be terminated without the need for the parties to reach a new agreement.

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