Top End Early Learning Centre Incorporated

[2025] FWCA 3054

[2025] FWCA 3054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Top End Early Learning Centre Incorporated

(AG2025/2914)

TOP END EARLY LEARNING CENTRE ENTERPRISE AGREEMENT 2012

Early childhood education industry
COMMISSIONER CRAWFORD	SYDNEY, 9 SEPTEMBER 2025

Application for termination of the Top End Early Learning Centre Enterprise Agreement 2012

Background

1. An application has been made by Top End Early Learning Centre Incorporated (Applicant) for the termination of the Top End Early Learning Centre Enterprise Agreement 2012 (Agreement) pursuant to s.222 of the Fair Work Act 2009 (Cth) (FW Act). The Agreement’s nominal expiry date is 30 December 2015.

1. Sections 222 and 223 of the FW Act set out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“222 Application for FWC approval of a termination of an enterprise agreement

Application for approval

(1)If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWC for approval of the termination.

Material to accompany the application

(2)    The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)The application must be made:

(a)     within 14 days after the termination is agreed to; or

(b)     if in all the circumstances FWC considers it fair to extend that period— within such further period as FWC allows.

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.”

1. Section 224 of the Act regulates the operative date of the termination and states: “If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.”

Consideration

1. The Agreement is a single enterprise agreement. It was approved by the Fair Work Commission (the Commission) on 23 May 2013.[1] It was approved to operate from 30 May 2013 with a nominal expiry date of 30 December 2015. The United Workers’ Union (UWU) is covered by the Agreement as the successor organisation to United Voice.

1. The application was accompanied by a declaration made by David Morphett (Workplace Relations Practitioner). Mr Morphett has declared that the relevant employees were notified on 19 August 2025 that a vote regarding the termination of the Agreement would commence on 19 August 2025 and close on 26 August 2025. Mr Morphett has declared that meetings were held on 12 August 2025 to discuss the implications of the potential termination of the Agreement. I am satisfied that the process meets the requirements in s220(2) and s.223(a) of the FW Act.

1. Mr Morphett’s declaration states there were 24 employees covered by the Agreement and 24 of these employees cast a valid vote in relation to whether the Agreement should be terminated. All 24 employees voted in favour of terminating the Agreement. I am satisfied that the termination was agreed in accordance with s.221(1) and s.223(b) of the FW Act.

1. I am satisfied that there are no other reasonable grounds for believing that the affected employees have not agreed to the termination in accordance with s.223(c) of the FW Act.

1. The UWU confirmed on 5 September 2025 that it does not oppose the application. I am satisfied it is appropriate to approve the termination in accordance with s.223(d) of the FW Act.

Conclusion

1. Section 223 of the FW Act states that the Commission must approve a valid application for the termination of an agreement if all the requirements in ss.223(a) to (d) are met. For the reasons set out above, I have determined that I am satisfied that all these requirements have been met.

1. I approve the termination of the Agreement and specify that the termination will take effect on 9 September 2025.

COMMISSIONER

[1] [2013] FWCA 3268.

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