Ingham Kindergarten Association T/A Ingham Community Kindergarten & Preschool Association Inc

[2018] FWCA 7443

[2018] FWCA 7443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Ingham Kindergarten Association T/A Ingham Community Kindergarten & Preschool Association Inc
(AG2018/6412)

INGHAM COMMUNITY KINDERGARTEN & PRESCHOOL EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2015

Educational services
COMMISSIONER BOOTH	BRISBANE, 6 DECEMBER 2018

Application for termination of the Ingham Community Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2015.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Ingham Community Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2015 (the Agreement). The nominal expiry date of the Agreement was 21 December 2017.

[2] Section 226 of the Act provides for when the Fair Work Commission must terminate an enterprise 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.”

[3] The Independent Education Union of Australia (IEU) are a party to the Agreement and raised concerns with the Memorandum of Understanding (MOU), that each employee signed. In particular, the IEU were concerned that the application for the Ingham Kindergarten Association T/A Ingham Community Kindergarten & Preschool Association Inc (the Employer) to become a C&K Branch might not be determined before the MOU expired on 31 January 2018.

[4] In response the Employer provided the following undertaking:-

•  Ingham Community Kindergarten & Preschool Early Childhood Education Employees will continue to receive their entitlements under the Ingham Community Kindergarten & Preschool Early Childhood Education Enterprise Agreement until they become employees of The Creche and Kindergarten Association.”

[5] On the basis of the Employer’s commitment, the IEU notified Chambers that it no longer opposed the application.

[6] The Employer provided material to the Commission to demonstrate that the views of the employees were sought.

[7] I have considered the views of the employees, employer and the employee organisation and I have considered the likely effect that the termination will have on each of them.

[8] In all circumstances I consider that it is not contrary to public interest to do so.

[9] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[10] The termination of the Agreement is approved with effect from 6 December 2018.

COMMISSIONER

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