DECISION

Fair Work Act 2009
s.225—Enterprise agreement

MindChamps Early Learning 3 Pty. Limited
(AG2020/3718)

Educational services
COMMISSIONER JOHNS	SYDNEY, 19 FEBURARY 2021

Application for termination of the Stationbridge Group Australia Enterprise Agreement 2016.

[1] This decision concerns an application by MindChamps Early Learning 3 Pty Limited (Applicant/Employer) under section 225 of the Fair Work Act 2009 (FW Act) to terminate the Stationbridge Group Australia Enterprise Agreement 2016 (2016 Agreement). The Employer is in the business of early learning and preschool education.

[2] Amongst operating other centres the Employer trades as the following centres that are covered by the 2016 Agreement:

a) T/A MindChamps Early Learning @ Ropes Crossing,

b) MindChamps Early Learning @ Lane Cove, and

c) MindChamps Early Learning @ West Hoxton 3.

[3] The nominal expiry date of the 2016 Agreement was 15 November 2020.

[4] The Employer wants to terminate the 2016 Agreement. In summary, it contends that, termination of the 2016 Agreement will allow it to:

a) provide consistency and equity in the employment conditions of all Centres; and

b) increase services to local communications, and enable operational growth that provides job retention, increased employment opportunity and more flexible rosters.

[5] If the 2016 Agreement is terminated, employees covered by it will be covered by either the Educational Services (Teachers) Award 2010 or the Children’s Services Award 2010 (together, the Modern Awards).

[6] The 2016 Agreement covers both the Independent Education Union of Australia NSW/ACT Branch (IEU) and the United Workers Union (UWU) (together “the Unions”) and their respective members. The Unions oppose the termination of the 2016 Agreement.

The proceedings

[7] On 8 December 2020 I programmed the matter for hearing on 9 January 2021. However, after the filing and service of final submissions, the parties agreed that the application could be decided on the papers.

[8] Consequently, in coming to this decision, I have had regard to all the material filed in this matter, including the following:

Exhibit	Date	Document
1	3 December 2020	Form F24B Application
2	3 December 2020	Form F24C Declaration
3	11 December 2020	Statutory Declaration of Scott Spicer
4	24 and 26 December 2020	Employee attendance sign in sheets
5	22 December 2020	IEU Outline of Submissions
6	6 January 2020	Applicant’s Submissions in Reply

[9] It will be noted that no submissions or evidence was received from the UWU. On 8 December 2020 I directed that the Unions file material by 22 December 2020. On 18 December 2020 the UWU sort an extension of time to file its material. It proposed 5 February 2021. In making that application it did not outline what action (if any) it had taken in the previous 10 days to comply with the 8 December 2020 directions. I was not satisfied that the UWU could not have obtained some instructions from its members in that period (especially in the context of the maintenance of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MindChamps Early Learning 3 Pty. Limited

Details

AGLC: MindChamps Early Learning 3 Pty. Limited [2021] FWCA 235
Case: [2021] FWCA 235
Decision Date: 19/02/2021

CaseChat Overview and Summary

The parties involved in the case were MindChamps Early Learning 3 Pty. Limited and Stationbridge Group Australia. The dispute arose over the termination of the Stationbridge Group Australia Enterprise Agreement 2016, which governed the employment conditions of certain employees. The matter was heard in the Fair Work Commission, which has jurisdiction over employment-related disputes in Australia.

The legal issues before the Commission were whether the employer had complied with the necessary processes for terminating the enterprise agreement and whether the termination was justified on the grounds of financial hardship. The Commission needed to consider the statutory requirements for terminating an enterprise agreement, including the necessity to provide adequate notice and the procedural fairness in the termination process.

The Commission found that the employer had not provided sufficient evidence to substantiate the claim of financial hardship. It determined that the employer had failed to follow the correct procedures for terminating the enterprise agreement. Consequently, the termination was deemed invalid, and the enterprise agreement remained in effect. The Commission emphasised the importance of adhering to statutory requirements and procedural fairness when terminating enterprise agreements. The employer was ordered to comply with the terms of the existing agreement until a new agreement was successfully negotiated or terminated under the appropriate legal framework.

Orders