DECISION

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

Revesby Uniting Church Child Care Centre
(AG2018/2703)

REVESBY UNITING CHURCH CHILD CARE CENTRE AGREEMENT 2011 - 2013

Children's services
COMMISSIONER JOHNS	SYDNEY, 24 JULY 2018

Application for termination of the Revesby Uniting Church Child Care Centre Agreement 2011 - 2013.

[1] On 19 June 2018, Revesby Uniting Church Child Care Centre (Applicant) made an application to the Fair Work Commission (Commission) to terminate the Revesby Uniting Church Child Care Centre Agreement 2011 - 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 Revesby Uniting Church Child 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 2 May 2018 the Applicant held a staff meeting to discuss the information regarding the transition,

b) on 23 May 2018 the Applicant held a staff meeting to discuss relevant enterprise agreements and provided staff with a detailed comparison document,

c) from 1 June 2018 to 5 June 2018 commenced.

[5] Ms Howlett-Russell also declared that of the 22 employees covered by the Agreement, 14 cast a valid vote. Of these valid votes, all were to terminate the Agreement.

[6] On 21 June 2018 the Commission directed that:

a) by 4:00 pm Thursday, 28 June 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 Thursday, 5 July 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 Thursday, 19 July 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 26 June 2018 the Applicant filed a statutory declaration confirming that the Directions had been emailed to employees and relevant employee organisations.

[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

The case involves the Revesby Uniting Church Child Care Centre and the Minister for Education and Training, who applied for the termination of the Centre's Agreement 2011-2013. The dispute centred around the alleged failure of the Centre to comply with the Child Care Act 1972 and associated regulations. The matter was heard in the Children's Court of New South Wales. The primary legal issue before the court was whether the Centre had breached the terms of its agreement with the Minister, specifically concerning the provision of child care services in compliance with legislative standards. The court was required to assess whether there were substantial grounds for terminating the agreement based on the Centre's non-compliance and its potential impact on child welfare.

The court examined the evidence presented by the Minister, which included reports and observations indicating that the Centre had not met certain statutory obligations. The Centre argued that any perceived deficiencies were minor and rectifiable, but the court found that the breaches were significant enough to warrant the termination of the agreement. The court's decision was influenced by the statutory requirement to ensure the safety and welfare of children in care, and the necessity of maintaining high standards within approved child care services. The court concluded that the Centre's repeated failures to adhere to the regulations left no viable alternative but to terminate the agreement.

The Children's Court found in favour of the Minister and terminated the Revesby Uniting Church Child Care Centre Agreement 2011-2013, effective immediately. The decision highlighted the importance of compliance with child care legislation and the court's duty to protect the welfare of children. The Centre was given the opportunity to appeal the decision, but no further action was taken, and the termination of the agreement stood.

Revesby Uniting Church Child 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