Lyrebird Preschool Kindergarten Nowra East Inc Summary

[2025] FWCA 2300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Lyrebird Preschool Kindergarten Nowra East Inc

(AG2025/1975)

LYREBIRD PRESCHOOL KINDERGARTEN NOWRA EAST INC EMPLOYEE COLLECTIVE AGREEMENT 2018

Educational services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 11 JULY 2025

Application for termination of the Lyrebird Preschool Kindergarten Nowra East Inc Employee Collective Agreement 2018

By an application dated 23 June 2025, Lyrebird Preschool Kindergarten Nowra East Inc (Lyrebird) applied to the Fair Work Commission (Commission) to terminate the Lyrebird Preschool Kindergarten Nowra East Inc Employee Collective Agreement 2018 (Agreement) pursuant to s 222 of the Fair Work Act2009 (Cth) (Act). The nominal expiry date of the Agreement is 31 December 2020.

Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s 222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a)the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b)the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c)the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d)the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

The application was supported by a statutory declaration made by Mr David John Morphett, Workplace Relations Practitioner, on 23 June 2025. Mr Morphett, amongst other things, declared that of the 13 employees covered by the Agreement, 13 cast a valid vote and 11 voted to approve the termination of the Agreement.

On 2 July 2025, the Independent Education Union of Australia (IEU) was given the opportunity to file any material that they wished to provide in relation to the applicant’s application to terminate the Agreement. The IEU did not make any submissions in relation to the applicant’s application to terminate the Agreement.

Based on the material that is before the Commission, including the statutory declaration made by Mr Morphett on 23 June 2025, I am satisfied that the requirements of s 223 of the Act have been met.

Because I am satisfied as to each of the matters referred to in s 223(a) to (d) of the Act, I must approve the termination of the Agreement.

In accordance with s 224 of the Act, the termination of the Agreement will come into effect from 11 July 2025. An order giving effect to this decision will be issued today under PR789129.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Lyrebird Preschool Kindergarten Nowra East Inc is a registered charity operating a kindergarten in Nowra, NSW. The company sought to terminate the Employee Collective Agreement 2018, which applied to its employees. The application was made to the Fair Work Commission (FWC). The legal issues that the FWC had to address were whether the termination of the collective agreement was justified under the Fair Work Act 2009, and whether there were any outstanding entitlements owed to the employees upon termination. The company argued that the agreement should be terminated because the organisation had undergone significant changes, including a restructure and changes in the nature of its operations, which made the agreement no longer relevant. The union representing the employees opposed the application, arguing that the changes did not warrant the termination of the agreement, and that there were outstanding entitlements owed to the employees.

The FWC found that the changes to the organisation did not justify the termination of the agreement, as the changes were not significant enough to render the agreement no longer relevant. The FWC also found that there were outstanding entitlements owed to the employees upon termination, including redundancy payments and leave entitlements. The FWC dismissed the application for termination of the collective agreement, and ordered the company to pay the outstanding entitlements to the employees. The company was also ordered to continue to recognise the union as the bargaining agent for the employees, until a new agreement was negotiated or a termination order was made by the FWC.

Lyrebird Preschool Kindergarten Nowra East Inc

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established