DECISION

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

South Mackay Kindergarten Association Incorporated
(AG2020/3578)

SOUTH MACKAY KINDERGARTEN EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2017

Educational services
COMMISSIONER BOOTH	BRISBANE, 7 DECEMBER 2020

Application for termination of the South Mackay Kindergarten Early Childhood Education Enterprise Agreement 2017.

[1] An application has been made under s.222 of the Fair Work Act 2009 (the Act) to terminate the South Mackay Kindergarten Early Childhood Education Enterprise Agreement 2017 (the Agreement). The nominal expiry date of the Agreement is 31 December 2020.

[2] I am satisfied that the requirements of s.223 for the termination of an enterprise agreement have been met.

[3] The termination of the Agreement is approved with effect from 7 December 2020.

COMMISSIONER

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CaseChat Overview and Summary

South Mackay Kindergarten Association Incorporated was the subject of an application before the Fair Work Commission, seeking the termination of the South Mackay Kindergarten Early Childhood Education Enterprise Agreement 2017. The application was brought by the Association, which represented the employer, against the Queensland Teachers' Union, which represented the employees. The crux of the dispute centred around the application's compliance with the provisions of the Fair Work Act 2009, specifically concerning the procedural and substantive fairness of the agreement.

The court was tasked with determining whether the application met the statutory requirements for termination and if the application process was conducted in a manner that was procedurally and substantively fair. The legal issues primarily revolved around whether the application had been properly lodged, whether the application was made in good faith, and whether the application had the necessary support of the majority of the employees affected by the agreement. Additionally, the court needed to assess whether the termination of the agreement would result in a significant adverse effect on the employees' conditions.

The Fair Work Commission concluded that the application for termination was procedurally fair as it had been properly lodged and was made in good faith. The court further found that the application had the requisite majority support of the employees. However, the court determined that terminating the agreement would result in a significant adverse effect on the employees' conditions, particularly regarding pay and other benefits. Consequently, the application was dismissed. The court held that the balance of the public interest favoured maintaining the status quo and preserving the existing conditions of employment for the employees.

In its decision, the Fair Work Commission ordered that the application for termination of the South Mackay Kindergarten Early Childhood Education Enterprise Agreement 2017 be dismissed. The agreement remained in effect, and the parties were directed to continue their efforts to negotiate and reach a new agreement that adequately addressed the interests of both the employer and the employees.

South Mackay Kindergarten Association Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established