Navitas English Services Pty Ltd

[2022] FWCA 1554

[2022] FWCA 1554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Navitas English Services Pty Ltd

(AG2022/1377)

NAVITAS ENGLISH SERVICES DARWIN TEACHERS' ENTERPRISE AGREEMENT 2017 - 2019

Educational services
COMMISSIONER RIORDAN	SYDNEY, 10 MAY 2022

Application for termination of the Navitas English Services Darwin Teachers' Enterprise Agreement 2017 – 2019.

1. Navitas English Services Pty Ltd (the Applicant) has applied, pursuant to s.225 of the Fair work Act 2009 (the Act) to terminate the Navitas English Services Darwin Teachers' Enterprise Agreement 2017 – 2019 (the Agreement).

1. The Agreement has passed its nominal expiry date.

1. There are no employee organisations covered by the Agreement.

1. Section 225 of the Act provides:

“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. Section 226 of the Act provides:

“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.”

1. In support of the application, Ms Kirsty Anne O’Rourke, Senior HR Manager, University Partnerships Australasia - WA, SA, Dubai, Singapore, ACBT & NZ, provided a declaration dated 6 May 2022. The declaration provided, inter alia, that on or around 26 June 2020, the Applicant ceased providing any English language training courses at Charles Darwin University, Ellengowan Drive, Casuarina in the Northern Territory, and has not provided any similar education services in the Northern Territory since that time. Ms O’Rourke provided that the Applicant ceased to employ any person whose employment was covered by the Agreement by or around that date. Ms O’Rourke declared that the Applicant has not sold, assigned or transferred any assets that were engaged in the provision of English language training courses by the Applicant in the Northern Territory to any other employer.

1. Based on the material contained in the employer’s declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement

1. The termination will operate from 10 May 2022.

1. An order giving effect to this decision is separately issued in PR741436.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE426007  PR741435>