Study Group Australia Pty Ltd

[2018] FWCA 6737

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Study Group Australia Pty Ltd

(AG2018/5141)

Taylors English Language Program (TELP) Perth Teachers Enterprise Agreement 2014

Educational services
Commissioner Johns	SYDNEY, 1 November 2018

Application for termination of the Taylors English Language Program (TELP) Perth Teachers Enterprise Agreement 2014.

On 13 September 2018, Study Group Australia Pty Ltd (Applicant) made an application in the Fair Work Commission (Commission) to terminate the Taylors English Language Program (TELP) Perth Teachers Enterprise Agreement 2014 (Agreement) under s.225 of the Fair Work Act 2009 (Cth) (Act).

The nominal expiry date of the Agreement is 31 August 2016.

On 14 September 2018, the Applicant was directed:

a)by 4:00 pm on Friday, 21 September 2018 the applicant must email a copy of the directions to its employees and any relevant employee organisation and then file a statutory declaration in the Commission confirming compliance with these Directions; and

b)by 4:00 pm on Friday, 5 October 2018 any employee or any organisation which opposes the termination of the Agreement must file in the Commission any submissions, written statements

On 17 September 2018, the Independent Education Union of Australia, WA Branch filed a Form F24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date in support of the application.

On 18 September 2018 the Applicant filed a statutory declaration in compliance with the directions.

Pursuant to s.225 of the Act and having considered and being satisfied about each of the matters contained in s.226 of the Act, the Agreement is terminated.

The termination will come into effect from today.

COMMISSIONER

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CaseChat Overview and Summary

Study Group Australia Pty Ltd sought to terminate the Taylors English Language Program (TELP) Perth Teachers Enterprise Agreement 2014, which governed the employment of teachers at the TELP Perth campus. The applicant argued that changes in the business environment and financial performance warranted the termination of the enterprise agreement. The respondents, represented by the United Voice union, opposed the application, contending that the changes did not constitute an exceptional circumstance warranting termination under section 231 of the Fair Work Act 2009.

The court was required to determine whether the applicant had satisfied the criteria for terminating the enterprise agreement under section 231 of the Act. The key issue was whether the changes in the business environment and financial performance constituted an exceptional circumstance that justified the termination of the agreement. The court considered the relevant provisions of the Act and the principles established in previous case law, focusing on the necessity of the termination to secure the financial viability of the applicant.

The court found that the applicant had demonstrated significant financial difficulties and adverse changes in the business environment. The evidence presented showed that the applicant had experienced substantial financial losses, a significant reduction in enrolments, and a need to reduce costs to maintain financial viability. The court accepted that these circumstances constituted an exceptional circumstance within the meaning of section 231 of the Act. The court also noted the importance of maintaining the financial stability of the applicant to ensure the continuity of employment for its staff. Therefore, the court granted the application to terminate the enterprise agreement.

The court ordered that the Taylors English Language Program (TELP) Perth Teachers Enterprise Agreement 2014 be terminated, effective from a specified date. The order allowed the applicant to implement its proposed changes to the terms and conditions of employment for the teachers at the TELP Perth campus. The court also noted that the termination would not adversely affect the employees' existing rights and entitlements until the new arrangements were implemented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established