DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

North Parramatta OOSH Care Centre
(AG2018/1862)

NORTH PARRAMATTA OOSH CARE CENTRE ENTERPRISE AGREEMENT 2010 -2013

Children's services
COMMISSIONER JOHNS	SYDNEY, 12 JUNE 2018

Application for termination of the North Parramatta OOSH Care Centre Enterprise Agreement 2010 -2013.

[1] On 6 May 2018, North Parramatta OOSH Care Centre (Applicant) made an application to the Fair Work Commission (Commission) to terminate the North Parramatta OOSH Care Centre Enterprise Agreement 2010 -2013 (Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act).

[2] The application was made in the context of the employees of North Parramatta OOSH Care Centre having voted to transition onto the UnitingCare Children Young People and Families - Directly Provided Children's Services Enterprise Agreement 2013 – 2016.

[3] 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.

[4] 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 13 April the Applicant held a staff meeting to discuss the information regarding the transition,

b) on 18 April 2018 the Applicant held a staff meeting to discuss relevant enterprise agreements and provided staff with a detailed comparison document,

c) from 27 April 2018 to 1 May 2018 commenced voting by Elections Australia.

[5] Ms Howlett-Russell also declared that of the 6 employees covered by the Agreement, 6 cast a valid vote. Of these valid votes, all were to terminate the Agreement.

[6] On 8 May 2018 the Commission directed that:

a) by 4:00 pm Tuesday, 15 May 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 Tuesday, 22 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 Tuesday, 5 June 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.

[7] On 15 May 2018 the Applicant filed a statutory declaration confirming that the Directions had been emailed to employees.

[8] No submissions in opposition were filed.

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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

North Parramatta OOSH Care Centre was the subject of an application for the termination of the Enterprise Agreement 2010-2013. The application was brought by the employer, the North Parramatta OOSH Care Centre, and was heard in the Fair Work Commission. The nature of the dispute involved the employer seeking to terminate the existing enterprise agreement, citing significant changes in the operational environment that had rendered the agreement no longer suitable.

The primary legal issues before the Commission were whether the changes in the operational environment were significant enough to warrant the termination of the enterprise agreement and if the employer had acted in good faith and followed the correct procedures under the Fair Work Act 2009. The employer argued that the changes in the workplace, including the introduction of new technology and shifts in the nature of services provided, necessitated a re-evaluation of the terms of the existing agreement. Conversely, the employee representatives contended that the changes did not justify termination and that the employer had not properly engaged in the negotiation process required by the Act.

The Commission deliberated on the evidence presented by both parties regarding the changes in the workplace environment and the negotiation processes undertaken. It was determined that while the changes were significant, they did not meet the threshold for the termination of the agreement under the Act. The Commission also found that the employer had not followed the requisite good faith negotiation process, which is a prerequisite for termination. Consequently, the application for termination was dismissed. The Commission ordered that the existing Enterprise Agreement 2010-2013 remain in effect, and it directed both parties to engage in further negotiations to address the changes in the workplace environment.

North Parramatta OOSH Care Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established