Tweed Valley Early Childhood Intervention Services Ltd T/A Shaping Outcomes

[2021] FWCA 7288

[2021] FWCA 7288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Tweed Valley Early Childhood Intervention Services Ltd T/A Shaping Outcomes
(AG2021/8480)

SHAPING OUTCOMES KEY WORKER SPECIALISTS COLLECTIVE AGREEMENT 2019

Educational services
COMMISSIONER JOHNS	SYDNEY, 23 DECEMBER 2021

Application for termination of the Shaping Outcomes Key Worker Specialist Collective Agreement 2019

[1] On 19 November 2021, Tweed Valley Early Childhood Intervention Services Ltd T/A Shaping Outcomes (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the Shaping Outcomes Key Worker Specialist Collective Agreement 2019 (the Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement had a nominal expiry date of 22 November 2022.

[2] 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.

[3] The application was supported by a Statutory Declaration made on 19 November 2021 by Colin Usher, Chief Executive Officer for the Applicant. Mr Usher declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a) On 12 July 2021, the Applicant held a discussion with staff about the Agreement. Staff raised concerns around a number of conditions within the Agreement that were unfair to employees and the employer.

b) On 16 July 2021, a notification of major workplace change letter was sent to all staff covered by the Agreement, to highlight the issued raised in the staff meeting discussions and to provide further feedback about Agreement conditions, entitlements and concerns.

c) From 6 September 2021, responses were gathered from staff for a period of 3 weeks.

d) From 20 September 2021 to 4 November 2021, discussions were held with staff in relation to staff responses.

e) On 9 November 2011, a final discussion was held with staff about the termination of the Agreement.

[4] The termination was agreed to on 19 November 2021. There were 14 employees covered by the agreement and 14 valid votes cast. Of the votes cast, 12 employees voted to terminate the agreement. The Application was made within 14 days of the termination being agreed and was accompanied by the appropriate declaration.

[5] On 23 November 2021 the Commission directed that:

a. by no later than 4:00 pm, 30 November 2021 the applicant must email a copy of these Directions to its employees and any relevant employee organisations (if any);

b. by no later than 4:00 pm, 7 December 2021 a director or officer of the applicant must file in the Commission and serve on any relevant employee organisation (if any), a statutory declaration confirming compliance with these directions;

c. by no later than 4:00 pm, 21 December 2021 any employee or any organisation which opposes the termination of Shaping Outcomes Key Worker Specialist Collective Agreement 2019 (Agreement) must file in the  Commission (by emailing [email protected]) any submissions, written statements and documents they rely upon in opposition to termination of the Agreement.

[6] On 25 November 2021, Mr Usher made a Statutory Declaration to declare that the Directions issued by the Commission on 23 November 2021 had been adhered to and served upon all employees of the Applicant.

[7] No submissions in opposition were filed to date.

[8] Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223 of the Act have been met.

[9] In accordance with s.224 of the Act, the termination will come into effect today, 23 December 2021. An Order to this effect [PR737135] has been issued concurrently with this decision.

COMMISSIONER

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