DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Smiling Children Pty Ltd T/A Rose Garden Child Care and Kindergarten Yarrambat
(AG2016/6857)

Children’s services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 17 NOVEMBER 2016

Application for termination of the Rose Garden Child Care and Kindergarten Agreement 2013.

[1] This decision follows an application made on 7 November 2016 by Smiling Children Pty Ltd trading as Rose Garden Child Care and Kindergarten Yarrambat (the applicant) under section 225 of the Fair Work Act 2009 (the Act) to terminate the Rose Garden Child Care and Kindergarten Agreement 2013, ABN 276 362 538 61 (Smiling Children Pty Ltd) (AE403723) (the agreement).

[2] The Agreement had a nominal expiry date of 30 June 2015.

[3] The Act provides :

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.

[4] The matter was listed for hearing. No party submitted contrary to the submissions of the applicant.

[5] I am satisfied that the relevant sections of the Act are met such that I must terminate the Agreement. The termination will take effect from the date of this Decision.

DEPUTY PRESIDENT

Hearing details:

2016

Melbourne

14 November

Final written submissions:

2016

11 November

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Smiling Children Pty Ltd T/A Rose Garden Child Care and Kindergarten Yarrambat, the applicant sought termination of the Rose Garden Child Care and Kindergarten Agreement 2013. The dispute arose from disagreements over the terms and conditions of the agreement, specifically concerning the provision of childcare services and the obligations of the parties involved. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court included whether the applicant had grounds to terminate the agreement based on alleged breaches by the respondent and whether the respondent had fulfilled its obligations under the agreement. The court had to consider the terms of the agreement, the conduct of the parties, and the implications of any breaches on the ongoing relationship between the parties. The applicant argued that the respondent had failed to meet its obligations, thereby justifying termination, while the respondent contended that it had fulfilled its duties and that any issues were minor and rectifiable.

The court carefully examined the evidence presented by both parties and the specific terms of the agreement. It found that while there had been some issues with the respondent's performance, they did not constitute a fundamental breach warranting termination of the agreement. The court considered the overall conduct and the possibility of resolving the issues through continued cooperation. Ultimately, the court ruled that the applicant did not have sufficient grounds to terminate the agreement and dismissed the application for termination.

Smiling Children Pty Ltd T/A Rose Garden Child Care and Kindergarten Yarrambat

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established