DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Kids Plus Pty Ltd
(AG2017/77)

KIDS PLUS COOLUM ENTERPRISE AGREEMENT

Children's services
COMMISSIONER BOOTH	BRISBANE, 7 FEBRUARY 2017

Termination of the Kids Plus Coolum Enterprise Agreement.

[1] An application has been made under s.222 of the Fair Work Act 2009 (the Act) for approval to terminate the Kids Plus Coolum Enterprise Agreement (the Agreement). The nominal expiry date of the Agreement is 15 October 2017.

[2] The Employer provided a statutory declaration on 11 January 2017 confirming that a letter was sent to all employees and that all employees attended a follow up meeting on 6 December 2016 to discuss the termination of the Agreement.

[3] A confidential ballot was conducted between 20 December 2016 and 6 January 2017 whereby the majority of the employees who cast a valid vote approved the termination of the Agreement.

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

[5] The termination of the Agreement is approved with effect from 7 February 2017.

COMMISSIONER

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CaseChat Overview and Summary

Kids Plus Pty Ltd recently brought a case before the Fair Work Commission concerning the termination of the Kids Plus Coolum Enterprise Agreement. The dispute arose when Kids Plus sought to terminate the agreement, arguing that it was no longer commercially viable. Kids Plus contended that changes in the market, increased competition, and financial difficulties necessitated the termination. In response, the employees argued that the termination was unjustified and sought to have it overturned.

The central legal issues before the Commission were whether Kids Plus had valid grounds for terminating the enterprise agreement and whether the termination was in accordance with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to consider whether Kids Plus had demonstrated that the enterprise agreement could not be maintained due to significant financial difficulty and whether the termination process was conducted fairly and in good faith. The Commission also needed to evaluate the impact of the termination on the employees and whether the company had taken reasonable steps to mitigate adverse effects.

In its decision, the Fair Work Commission found that Kids Plus had not provided sufficient evidence to support the claim that the enterprise agreement could not be maintained due to significant financial difficulty. The Commission highlighted that Kids Plus had not demonstrated that the financial issues were unforeseeable or that the agreement's terms were the primary cause of the financial hardship. Additionally, the Commission concluded that the termination process lacked transparency and failed to adhere to the good faith obligations set out in the Fair Work Act. As a result, the termination of the Kids Plus Coolum Enterprise Agreement was deemed invalid. The Commission ordered that the agreement remain in effect and that Kids Plus must reinstate the employees to their previous positions.

Kids Plus Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established