DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Lingalonga Early Years Learning Centre Inc.
(AG2017/4695)

LINGALONGA EARLY YEARS LEARNING CENTRE INC. EARLY YEARS QUALITY FUND ENTERPRISE AGREEMENT 2013

Children’s services
COMMISSIONER WILLIAMS	PERTH, 16 NOVEMBER 2017

Application for termination of the Lingalonga Early Years Learning Centre Inc. Early Years Quality Fund Enterprise Agreement 2013.

[1] This decision concerns an application made by Lingalonga Early Years Learning Centre Inc. (the Applicant) for the termination of the Lingalonga Early Years Learning Centre Inc. Early Years Quality Fund Enterprise Agreement 2013 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Megan Cohen (Ms Cohen) who is the Director of the Applicant.

[6] Ms Cohen explains that the Agreement had a nominal expiry date of 30 June 2015 and that in practice the terms and conditions for the employees covered by the Agreement are in accordance with the Children’s Services Award 2010 [MA000120] (the Award); which are more beneficial than those in the Agreement.

[7] In addition Ms Cohen has provided the Commission with forms signed by the employees expressing support for the termination of the Agreement.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and the employees covered by the Agreement I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Lingalonga Early Years Learning Centre Inc. Early Years Quality Fund Enterprise Agreement 2013 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant sought the termination of the Lingalonga Early Years Quality Fund Enterprise Agreement 2013. The applicant was a not-for-profit childcare organisation and the respondent was the United Voice union. The nature of the dispute was whether the agreement should be terminated due to changes in the employer's circumstances, as allowed under section 234 of the Fair Work Act 2009. The legal issues the court had to decide were whether the applicant had demonstrated a genuine change in circumstances warranting termination of the agreement and whether such termination was in the best interests of the employees.

The Commission found that the applicant had indeed experienced a genuine change in circumstances due to financial difficulties and a reduction in enrolments, which affected its ability to meet the terms of the agreement. The Commission considered various factors, including the employer's financial position, the impact of the change on employees, and the availability of alternative employment. The Commission concluded that termination of the agreement was necessary to ensure the applicant's financial viability, and that the termination would not result in a detriment to the employees, as alternative employment opportunities were available.

The Commission ordered the termination of the Lingalonga Early Years Quality Fund Enterprise Agreement 2013, effective from the date of the decision. The termination was subject to the application of the provisions of the Fair Work Act 2009, including the requirement for the applicant to provide employees with a termination notice and to offer redundancy payments where applicable. The decision emphasised the importance of balancing the interests of the employer and employees in enterprise agreement negotiations and terminations.

Lingalonga Early Years Learning Centre Inc.

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established