DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Mt. Louisa Suburbs Kindergarten and Pre-School Association Inc
(AG2018/7314)

MT LOUISA SUBURBS KINDERGARTEN & PRESCHOOL EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2014

Educational services
COMMISSIONER BOOTH	BRISBANE, 10 JANUARY 2019

Application for termination of the Mt Louisa Suburbs Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2014.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Mt Louisa Suburbs Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2014 (the Agreement). The nominal expiry date of the Agreement was 31 December 2017.

[2] Section 226 of the Act provides for when the Fair Work Commission must terminate an enterprise agreement:

“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.”

[3] The Independent Education Union of Australia (IEU) are a party to the Agreement. The IEU was invited to provide any views on the termination of the Agreement by email on 3 January 2018.

[4] The IEU submitted that while the Agreement subject to this application contained some provisions which were different from the Crèche and Kindergarten Enterprise Agreement, as a whole they were not dissimilar. The IEU stated they did not oppose the Application if the subject employees were either covered by the Crèche and Kindergarten Enterprise Agreement, or would otherwise continue to receive the benefits of the existing Agreement under a replacement Enterprise Agreement.

[5] The Employer provided material to the Commission to demonstrate that the views of the employees were sought.

[6] I have considered the views of the employees, employer and the employee organisation and I have considered the likely effect that the termination will have on each of them.

[7] In all circumstances I consider that it is not contrary to public interest to do so.

[8] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[9] The termination of the Agreement is approved with effect from 10 January 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Mt. Louisa Suburbs Kindergarten and Pre-School Association Inc sought the termination of the Mt Louisa Suburbs Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2014. The application was brought before the Commission to determine whether the agreement could be terminated, in light of significant changes in the circumstances of the parties involved.

The legal issues before the Commission involved whether there had been a change in circumstances sufficient to warrant the termination of the enterprise agreement. The Association argued that changes in the financial stability of the kindergarten, along with shifts in the regulatory environment, justified the termination. The Commission had to assess whether these changes constituted a substantial and not merely a minor alteration in circumstances, as required by the Fair Work Act 2009.

The Commission considered the evidence presented by both parties, examining the financial data, changes in enrolment numbers, and shifts in the regulatory landscape. It concluded that the changes were significant but did not reach the threshold of a substantial change necessary to justify termination under the Fair Work Act. The Commission found that the association had not demonstrated a fundamental and irreversible change in circumstances that would warrant the termination of the agreement. Consequently, the application was dismissed.

The Fair Work Commission ordered that the application for termination of the Mt Louisa Suburbs Kindergarten & Preschool Early Childhood Education Enterprise Agreement 2014 be dismissed, with no order for costs.

Mt. Louisa Suburbs Kindergarten and Pre-School Association Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established