The Point Pre School Inc
[2018] FWCA 489
•23 JANUARY 2018
| [2018] FWCA 489 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement
The Point Pre School Inc
(AG2017/6809)
| Educational services | |
| COMMISSIONER JOHNS | SYDNEY, 23 JANUARY 2018 |
Application for termination of the The Point Preschool Inc Teachers' Enterprise Agreement 2011.
On 29 December 2017, the Point Pre School Inc (Applicant) made an application in the Fair Work Commission (Commission) to terminate the Point Preschool Inc Teachers' Enterprise Agreement 2011 (Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement covers only one teacher (Employee).
Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:
223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.
The application was supported by a Statutory Declaration made by Ewa Talbot, the Solicitor for the Applicant. Ms Talbot declared that the following steps were taken by the applicant to ensure that the Employee was given a reasonable opportunity to decide whether they wanted to approve the termination:
a)In May 2017 the Employee was informed of the Applicant’s intent to terminate the Agreement and sought their input.
b)On 12 December 2017 the Employee was given formal notice by email specifying when a vote would take place to determine whether the Agreement would be terminated.
c)On 15 December 2017 the Employee voted to terminate the Agreement.
The Commission was concerned that the prohibition in section 172(6) of the Act, by extension, also prohibited the termination of an Agreement made with a single employee as:
a)The Agreement covered one employee;
b)The nominal expiry date of the Agreement was 31 December 2013;
c)From 1 January 2013 s.172(6) of the Fair Work Act 2009 (FW Act) commenced operation;
d)Section 172(6) prohibits an agreement being made with a single employee; and
e)On 29 December 2017 The Point Pre School Inc made application to terminate the Agreement.
As such, on 4 January 2018, the Commission directed that:
a)The Applicant file in the Commission and serve on The Independent Education Union of Australia (IEU) any submissions it makes about the capacity of the Commission to terminate the Agreement by 5pm on 12 January 2018; and
b)The IEU must file in the Commission and serve on the applicant any submissions in reply by 5pm on 19 January 2018.
The matter was listed for Mentions and/or Directions on 23 January 2018.
The Applicant submitted:
“1. These submissions address whether, in light of section 172(6) of the Fair Work Act (FW Act) which prohibits agreements being made with a single employee, the Fair Work Commission has jurisdiction or capacity to terminate the The Point Preschool Inc Teachers' Enterprise Agreement 2011 (Agreement).
2. The Agreement was approved by the Fair Work Commission on 2 March 2011 and was made with a single employee.
3. On 1 January 2013 section 172(6) of the FW Act commenced. Section 172(6) provides that an enterprise agreement cannot be made with a single employee.
4. The applicant submits that section 172(6) does not preclude the Fair Work Commission from having jurisdiction or capacity to terminate the Agreement on the basis that section 172(6) does not apply to the Agreement by virtue of the transitional provisions in the relevant amending act.
5. Section 172(6) was inserted into the FW Act by Part 1 of Schedule 4 to the Fair Work Amendment Act 201 (No. 174, 2012) (2012 Act). The transitional provisions which apply to this amendment specify that section 172(6) only applies to agreements made after the amendment and section 172(6) commenced operation. Specifically, section 4 of Schedule 11 to the 2012 Act provides:
The amendment made by Part 1 of Schedule 4 to the amending Act (which is about enterprise agreements covering a single employee) applies in relation to enterprise agreements that are purportedly made after the commencement of that Part.
6. Part 1 of Schedule 4 to the 2012 Act commenced on 1 January 2013. As the Agreement was made prior to this date, section 172(6) does not apply to it and therefore does not affect the validity of the Agreement, nor preclude the Fair Work Commission from having jurisdiction or capacity to terminate the Agreement.”
In response, the IEU submitted the same argument; agreeing that the Commission was able to, and that it should, terminate the Agreement.
On 23 January 2018, the parties consented to the matter being decided on the papers. Subsequently the Mentions and/or Directions on 23 January 2018 was vacated.
Based on the material that is before the Commission, including the statutory declaration provided by the employer and the parties’ submissions, the Commission is satisfied that the requirements of s.223 of the Act have been met.
In accordance with s.224 of the Act, the termination will come into effect today.
COMMISSIONER
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