DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Rowes Bay Preschool and Kindergarten Association of Townsville Inc T/A Rowes Bay Preschool and Kindergarten
(AG2019/1407)

ROWES BAY PRESCHOOL & KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2016

Educational services
COMMISSIONER BOOTH	BRISBANE, 20 MAY 2019

Application for termination of the Rowes Bay Preschool & Kindergarten Early Childhood Education Enterprise Agreement 2016.

[1] An application has been made pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Rowes Bay Preschool & Kindergarten Early Childhood Education Enterprise Agreement 2016 (the Agreement). The nominal expiry date of the Agreement was 31 December 2018.

[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 2 May 2019.

[4] The IEU submitted that it did not oppose the termination of the Agreement on the basis of the written assurances provided by the Employer that the employees will be employed in accordance with the C&K Enterprise Agreement. The IEU submitted further that the C&K Enterprise Agreement is a contemporary Agreement which provides broadly comparable wages and conditions. The IEU noted that if the move to become a C&K Branch Kindergarten is not successful, the wages and conditions of employees will remain protected.

[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 20 May 2019.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved the Rowes Bay Preschool and Kindergarten Association of Townsville Inc, trading as Rowes Bay Preschool and Kindergarten, which applied for the termination of its early childhood education enterprise agreement from 2016. The application was made under section 240 of the Fair Work Act 2009, asserting that there were significant changes in the circumstances affecting the agreement that warranted its termination. The Fair Work Commission was required to determine whether the conditions for terminating the agreement were met.

The primary legal issues addressed by the Commission were whether the changes in the circumstances were significant and whether these changes were not adequately addressed by bargaining or by the agreement itself. The Commission considered the economic and operational changes in the early childhood education sector, including funding models and workforce dynamics, as well as the specific circumstances of the preschool. The Commission also examined the efforts made by the parties to negotiate and reach a new agreement.

The Fair Work Commission concluded that the changes in the circumstances were significant and that the parties had not been able to reach an agreement that adequately addressed these changes. The Commission found that the changes included shifts in the funding model, which affected the financial stability of the preschool, as well as changes in the operational environment that required adjustments not contemplated by the 2016 agreement. The Commission determined that the application met the statutory criteria for termination, and thus, the Rowes Bay Preschool & Kindergarten Early Childhood Education Enterprise Agreement 2016 was terminated.

The Fair Work Commission's decision resulted in the termination of the 2016 agreement, effective from the date of the decision. The Commission ordered that the termination would not affect the ongoing employment of any employees and that any disputes arising from the termination would be governed by the relevant provisions of the Fair Work Act. The Commission's decision provided clarity for both the employer and employees regarding the new terms and conditions that would apply in the absence of an existing agreement.

Rowes Bay Preschool and Kindergarten Association of Townsville Inc T/A Rowes Bay Preschool and Kindergarten

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established