DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Tocumwal Preschool Kindergarten Inc
(AG2016/7748)

TOCUMWAL PRESCHOOL KINDERGARTEN INC. TEACHERS' COLLECTIVE AGREEMENT 2010

Educational services
COMMISSIONER BOOTH	BRISBANE, 23 JANUARY 2017

Termination of the Tocumwal Preschool Kindergarten Inc Teachers' Collective Agreement 2010.

[1] Tocumwal Preschool Kindergarten Inc (the Employer) has applied, under s.225 of the Fair Work Act 2009 (the Act) to terminate the Tocumwal Preschool Kindergarten Inc Teachers' Collective Agreement 2010 (the Agreement). The Agreement covers the Employer and employees of the Employer specified in clause 3.4 of the Agreement. The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

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

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[3] Section 226 of 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 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 organization (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 Independent Education Union of Australia (IEUA) is an organisation which is covered by the Agreement. In a telephone conference held on 22 January 2017, the IEUA advised that it did not oppose the cancellation of the Agreement.

[5] Based on the material contained in the Employer’s declaration filed with the application the contents of which were confirmed at the telephone conference, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement and as stated in the Employer’s declaration, the Agreement does not cover nor apply to any employee of the Employer. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 23 January 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Tocumwal Preschool Kindergarten Inc was a party to a collective agreement with its teachers, governed by the Teachers' Collective Agreement 2010. Disputes arose regarding the agreement's termination, which was challenged in the Fair Work Commission. The primary issue before the commission was whether the employer could lawfully terminate the agreement under the Fair Work Act 2009. The commission had to consider the procedural correctness of the termination notice and the employer's compliance with relevant provisions of the act.

The commission evaluated the procedural steps taken by the employer to terminate the agreement, focusing on whether proper notice was given and if the employer fulfilled its obligations to consult with the teachers. Additionally, the commission examined the employer's adherence to the criteria outlined in the act for terminating the agreement. The commission found that the employer had not strictly followed the procedural requirements for termination as mandated by the act. The employer's failure to adequately consult with the teachers and to meet the criteria for termination was deemed significant.

Consequently, the commission ruled that the termination of the collective agreement was unlawful. The commission reinstated the Teachers' Collective Agreement 2010, emphasising the importance of procedural compliance in such terminations. The commission's decision underscored the necessity for employers to follow the correct processes to avoid invalidating the termination of collective agreements.

Tocumwal Preschool Kindergarten Inc

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established