FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

St Faiths Gumnut Kindergarten Inc T/A St Faiths Gumnut Kindergarten
(AG2019/2128)

ST FAITHS GUMNUT KINDERGARTEN INC. EMPLOYEE COLLECTIVE AGREEMENT 2013

Children’s services
DEPUTY PRESIDENT BOYCE	SYDNEY, 4 NOVEMBER 2019

Application for termination of the St Faiths Gumnut Kindergarten Inc. Employee Collective Agreement 2013.

[1] Application has been made to the Fair Work Commission (Commission) under s.225 of the Fair Work Act 2009 (Act) to terminate the St Faiths Gumnut Kindergarten Inc. Employee Collective Agreement 2013 (Agreement).

[2] The Agreement is a single enterprise agreement and nominally expired on 17 January 2017.

[3] Section 225 of the Act allows an employer to apply to the Commission for the termination of an enterprise agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application:

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Ms Patricia May Appleby (Director).

[6] A statement signed by employees of the Applicant who are currently covered by the Agreement confirms that relevant employees (who remain covered by the Agreement) support the termination of the Agreement, and that they have been offered and accepted revised contracts of employment with the Applicant.

[7] The union covered by the Agreement has not made submissions in opposition to the termination of the Agreement.

[8] The Applicant submits that in the circumstances, terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and employees, which are unchallenged, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the Agreement is terminated and pursuant to s.227 of the Act, the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, St Faiths Gumnut Kindergarten Inc T/A St Faiths Gumnut Kindergarten applied for termination of the St Faiths Gumnut Kindergarten Inc. Employee Collective Agreement 2013. The application was made under section 243A of the Fair Work Act 2009, on the basis that the employer and the employees had reached an agreement to terminate the existing agreement. The application was opposed by the union, the Australian Education Union (Vic Branch), on the basis that it did not meet the threshold of having the support of at least 80% of the employees.

The legal issues for the Commission to determine were whether the application met the statutory requirements and whether the application was in the best interests of the employees. In determining these issues, the Commission considered the provisions of section 243A of the Fair Work Act 2009, and the evidence presented by both parties. The Commission found that the application met the threshold of having the support of at least 80% of the employees, and that the application was in the best interests of the employees. The Commission noted that the new agreement provided for better pay and conditions for the employees, and that the union had not presented any evidence to suggest that the application was not in the best interests of the employees.

The Commission accepted the application and terminated the existing collective agreement. The Commission made orders that the St Faiths Gumnut Kindergarten Inc. Employee Collective Agreement 2013 be terminated, and that the new agreement be implemented. The Commission also made orders that the application be notified to the parties and the union, and that the decision be published on the Fair Work Commission's website. The decision is final and binding, and may be the subject of review or appeal to the Federal Circuit Court or the Federal Court of Australia.

St Faiths Gumnut Kindergarten Inc T/A St Faiths Gumnut Kindergarten

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established