Noahs Ark Preschool & Casual Care Centre T/A Noah's Ark Preschool

[2018] FWCA 3311

[2018] FWCA 3311

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

Noahs Ark Preschool & Casual Care Centre T/A Noah's Ark Preschool

(AG2018/1461)

Noah's Ark Preschool and Casual Care Centre Enterprise Agreement 2011-2013

Children's services
Commissioner Johns	MELBOURNE, 6 JUNE 2018

Application for termination of the Noah's Ark Preschool and Casual Care Centre Enterprise Agreement 2011-2013.

1. On 13 April 2018, the Noahs Ark Preschool & Casual Care Centre T/A Noah's Ark Preschool (Applicant) made an application to the Fair Work Commission (Commission) to terminate the Noah's Ark Preschool and Casual Care Centre Enterprise Agreement 2011-2013 (Agreement).

1. Due to an administrative error, the Applicant lodged the wrong forms in regards to this application. On 18 April 2018 the Applicant rectified this issue by lodging the correct Form F24 and Form F24A to terminate the Agreement under s.222 of the Fair Work Act 2009 (Cth) (Act).

1. The application was made in the context of the employees of Noah's Ark Preschool having voted to transition onto the UnitingCare Children Young People and Families - Directly Provided Children's Services Enterprise Agreement 2013 – 2016.

1. Section 223 of the Act sets out the conditions which must be met for an 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.

1. The application was supported by a Statutory Declaration made by Kimberley Howlett-Russell, Human Resources Business Partner of Uniting. Ms Howlett-Russel declared that the following steps were taken by the applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a)on 7 March 2018 the Applicant held a staff meeting to discuss the process of terminating the agreement and provided information about working with Uniting,

b)on 14 March 2018 the Applicant held a staff meeting to discuss a comparison document which outline the differences between the two agreements, answer any questions and continue discussions on the process.

c)from 27 March 2018 to 3 April 2018 commenced voting by Elections Australia.

1. Ms Howlett-Russell also declared that of the 10 employees covered by the Agreement, 9 cast a valid vote. Of these valid votes, all 9 were to terminate the Agreement.

1. On 19 April 2018 the Commission directed that:

a)by 4:00 pm Thursday, 26 April 2018 the Applicant must email a copy of these Directions to its employees, United Voice and the IEUA (or any other relevant organisation);

b)by 4:00 pm Wednesday, 2 May 2018 a director or officer of the Applicant must file in the Commission and serve on United Voice and the IEUA (or any other relevant organisation), a statutory declaration confirming compliance with these Directions.

c)by 4:00 pm Wednesday, 16 May 2018 any employee or any organisation which opposes the termination of the Agreement must file in the  Commission any submissions, written statements and documents they rely upon in opposition to the Agreement being terminated.

1. On 23 April 2018 Ms Howlett-Russell filed a statutory declaration confirming that the Directions had been emailed to employees.

1. No submissions in opposition were filed.

1. Based on the material that is before the Commission, including the statutory declaration provided by the employer, the Commission is satisfied that the requirements of s.223 of the Act have been met.

1. In accordance with s.224 of the Act, the termination will come into effect today.

COMMISSIONER

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