Kingston Beach Educational Care Inc

[2025] FWCA 461

[2025] FWCA 461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Kingston Beach Educational Care Inc

(AG2024/4584)

KBEC UNITED VOICE BIG STEPS ENTERPRISE AGREEMENT 2013

Melbourne
COMMISSIONER WILSON	MELBOURNE, 5 FEBRUARY 2025

Application for termination of the KBEC United Voice Big Steps Enterprise Agreement 2013.

1. On 19 November 2024, Kingston Beach Educational Care Inc (the Applicant) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the KBEC United Voice Big Steps Enterprise Agreement 2013 (the Agreement) after its nominal expiry date.

1. The Agreement covers United Voice, now the United Workers' Union (UWU).

1. Section 225 of the Act states:

   “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.”

1. The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date, which was 30 June 2015.

1. Section 226 of the Act sets out when the Fair Work Commission (the Commission) must terminate an expired enterprise agreement where an application to terminate an agreement is made.

1. The material before the Commission includes the originating application and an accompanying statutory declaration filed by the employer in support of the application. The Applicant has also provided submissions and material in response to requests by me for further particulars.

1. On 28 November 2024, I wrote to the Applicant seeking further information as to why the application was made as the F24C stated that no employees were covered or likely to be covered by the Agreement, but the Applicant appeared to be continuing to operate.

1. On 6 December 2024, I received a response from the Applicant. I did not consider the response adequate to address my questions and listed the matter for hearing on 11 December 2024. I also provided the application and additional material received from the Applicant to the UWU.

1. On 13 December 2024, I received further material from the Applicant in support of their application and in response to matters raised during the hearing. These materials were also provided to the UWU. On the same day, I directed the Applicant to serve the Form F24B and the revised Form F24C material on each employee presently covered by the Agreement and to invite the provision of each employees’ views on the s.225 application within 7 calendar days.

1. No employee presently covered by the Agreement provided any views on the termination application.

1. On 17 December 2024, the Applicant wrote to my Chambers and the UWU with further information regarding employees covered by the Agreement. This included the current classification and rate of pay of each employee, payroll evidence for each classification listed in the spreadsheet and a statutory declaration from the Applicant confirming their compliance with my previous directions.

1. On 15 January 2025, I advised the parties that I would be prepared to terminate the Agreement if the Applicant provided an undertaking that can be placed on the Commission’s file in terms I supplied in the correspondence. The Applicant and the UWU were invited to provide responses to my preliminary view that the Agreement may be terminated and on the proposed undertaking.

1. The UWU confirmed their support for the proposed undertaking by reply email on the same day.

1. On 30 January 2025 the Applicant provided the undertaking at Annexure A.

1. I am satisfied that each of the requirements of s.226 of the Act have been met. As a result, I must approve the termination of the Agreement.

1. The Agreement is terminated and, pursuant to s.227 of the Act, the termination will come into effect from 6 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE403165  PR784027>

Annexure A