DECISION

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

Toobeah Kindergarten Association Incorporated T/A Toobeah Kindergarten and Children's Centre
(AG2020/1857)

TOOBEAH KINDERGARTEN AND CHILDREN'S CENTRE EARLY CHILDHOOD EDUCATION ENTERPRISE AGREEMENT 2011

Educational services
COMMISSIONER SIMPSON	BRISBANE, 13 AUGUST 2020

Application for termination of the Toobeah Kindergarten and Children's Centre Early Childhood Education Enterprise Agreement 2011.

[1] Toobeah Kindergarten Association Incorporated T/A Toobeah Kindergarten and Children's Centre (the Applicant) has filed an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Toobeah Kindergarten and Children's Centre Early Childhood Education Enterprise Agreement 2011 (the Agreement) after its nominal expiry date.

[2] The Agreement is a single enterprise agreement and its nominal expiry date was 31 December 2014.

[3] The relevant provisions of the Act are as follows:

“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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] A statutory declaration of Ms Bridget Coulton, Association Secretary, declared on 26 June 2020 was filed in the Fair Work Commission with the application. The Fair Work Commission is advised that no employees are covered by the Agreement.

[5] The Independent Education Union (IEU) was covered by the Agreement and confirmed in writing that it does not oppose termination of the Agreement. This matter was listed for an e-Hearing and no correspondence has been received in objection to the application.

[6] On the basis of the material before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances of the employees and employer.

[7] I, therefore, determine that the Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act, the termination of the agreement shall operate from 13 August 2020.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved the Toobeah Kindergarten Association Incorporated, trading as Toobeah Kindergarten and Children's Centre, and the Australian Education Union Queensland Division. The dispute pertained to an application for the termination of the Toobeah Kindergarten and Children's Centre Early Childhood Education Enterprise Agreement 2011. The case was heard in the Fair Work Commission.

The primary legal issue for the court to determine was whether the application to terminate the enterprise agreement was valid and justified under the Fair Work Act 2009. Specifically, the court had to consider whether the application met the statutory criteria for termination, including whether the changes in circumstances since the agreement was made warranted its termination. Furthermore, the court needed to evaluate the process followed by the employer in making the application and whether the application was made in good faith.

The court found that the application was valid and justified, as the employer had demonstrated significant changes in circumstances, including financial hardship, that warranted the termination of the agreement. The employer had followed the proper process in making the application and acted in good faith. The court concluded that the application satisfied the statutory criteria for termination, and the enterprise agreement was duly terminated. The decision was made considering the need to balance the rights of both the employer and the employees while ensuring that the changes in circumstances were substantial enough to warrant the termination of the agreement.

In conclusion, the court granted the application for the termination of the Toobeah Kindergarten and Children's Centre Early Childhood Education Enterprise Agreement 2011. The decision recognised the employer's right to apply for termination under the Fair Work Act 2009 and acknowledged the significant changes in circumstances that necessitated the termination of the agreement. The court's decision was made with careful consideration of the rights of both parties and the need to balance those rights in light of the changed circumstances.

Toobeah Kindergarten Association Incorporated T/A Toobeah Kindergarten and Children's Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established