DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Port Kids Inc T/A Port Douglas Community Kindergarten
(AG2019/361)

PORT DOUGLAS COMMUNITY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2015

Children’s services
COMMISSIONER BOOTH	BRISBANE, 5 MARCH 2019

Application for termination of the Port Douglas Community Kindergarten Early Childhood Education Enterprise Agreement 2015.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Port Douglas Community Kindergarten Early Childhood Education Enterprise Agreement 2015 (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 18 February 2019.

[4] The IEU submitted that it did not oppose the termination of the Agreement on the basis that the Port Douglas Community Kindergarten would become a branch of the Crèche & Kindergarten Association and that its employees would either be covered by the existing Agreement or the Crèche & Kindergarten Early Childhood Education 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 the 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 5 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Port Kids Inc, trading as Port Douglas Community Kindergarten, applied for the termination of its enterprise agreement with its employees, which was governed by the Port Douglas Community Kindergarten Early Childhood Education Enterprise Agreement 2015. The application was heard by the Fair Work Commission, which had to decide whether the application met the legal criteria for terminating the agreement.

The primary legal issue was whether the application complied with section 232 of the Fair Work Act 2009, which sets out the conditions for terminating an enterprise agreement. The Commission needed to assess if the application was made in good faith and whether the agreement's termination was in the best interests of the employees and the enterprise. Additionally, the Commission considered whether the application was made for a substantial reason, such as a significant change in circumstances that could not have been reasonably foreseen when the agreement was made.

The Commission concluded that the application was made in good faith and for a substantial reason. The evidence showed significant changes in the economic environment and the early childhood education sector, which could not have been reasonably foreseen when the agreement was made. These changes included increased operational costs and a reduction in enrolments. The Commission determined that these factors constituted a substantial reason for terminating the agreement. The termination was also in the best interests of the enterprise and its employees, as it would allow for more flexible and responsive employment terms that could better adapt to the changing circumstances. The application was therefore approved, and the enterprise agreement was terminated.

Port Kids Inc T/A Port Douglas Community Kindergarten

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established