Kingaroy Kindergarten Association Inc T/A Kingaroy Kindergarten

[2024] FWCA 4022

[2024] FWCA 4022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Kingaroy Kindergarten Association Inc T/A Kingaroy Kindergarten

(AG2024/4293)

KINGAROY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2015

Educational services
DEPUTY PRESIDENT DOBSON	BRISBANE, 18 NOVEMBER 2024

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

1. This is a decision about an application by Kingaroy Kindergarten Association Inc (KKA) to terminate their Kingaroy Kindergarten Early Childhood Education Enterprise Agreement 2015 (the Agreement) after its nominal expiry date which was reached on 31 December 2017. It has been made under s.225 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is expressed to cover early childhood educators and their assistants engaged by the Applicant under the Agreement.

The Law

1. Sections 225[1] and 226[2] of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) set out the relevant provisions of the law that are considered in applications of this nature.

2. The application was accompanied by a F24C declaration completed by Ms Rachel Ledger (Association Vice President). Ms Ledger states that the Kindergarten has been purchased by a new owner (Creche & Kindergarten Association) who will only offer positions to the existing employees if they do not transfer the current Agreement with them. This can only occur if the Agreement is terminated. The Applicant entity will no longer continue to operate. Ms Ledger also advised, importantly, that if the Agreement is terminate, the new owner will offer employment to the employees currently covered by the Agreement.

1. I note that the Applicant asked those employees to vote on the termination of the Agreement and that of the 5, 4 chose to cast a vote and all 4 of those agreed to terminate the Agreement. Additionally, the application and declaration (Forms F24B and F24C) were served on the employees still covered by the Agreement on 5 November 2024 and the employees were invited to provide any submissions, either for or against the termination of the Agreement by no later than 4pm on 12 November 2024. No further submissions from employees were received.

1. On 4 November 2024 I wrote to the Independent Education Union of Queensland and Northern Territory, who are covered by the Agreement, to seek their views before 4pm on 12 November 2024 and they have advised that they support the termination of the Agreement.

1. I am satisfied that the continued operation of the Agreement would be unfair for the employees currently covered by it as it will prevent those employees being offered a role by the new owner and that it therefore must be terminated.[3] I am satisfied that I have considered the views of the relevant parties[4] and I am satisfied that none of the criteria in s.226(4) are applicable in this matter and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s.226(5)).

1. The termination will operate from the date of this decision.

DEPUTY PRESIDENT

[1] 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.

[2] 226   Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)all of the following apply:

(i)    the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)     the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)    if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)This subsection covers a termination of the employment of an employee:

(a)    at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)    because of the insolvency or bankruptcy of the employer.

(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)    the employees (unless there are no employees covered by the agreement);

(b)    each employer;

(c)    each employee organisation (if any).

[3] Fair Work Act 2009 (Cth) s.226(1)(a).

[4] Ibid s.226(3).

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