UnitingCare Burwood Preschool

[2018] FWCA 6739

[2018] FWCA 6739

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.222 - Application for approval of a termination of an enterprise agreement

UnitingCare Burwood Preschool

(AG2018/5179)

UnitingCare Burwood Preschool Enterprise Agreement 2011-2013

Educational services
Commissioner Johns	SYDNEY, 1 November 2018

Application for termination of the UnitingCare Burwood Preschool Enterprise Agreement 2011-2013.

1. On 14 September 2018 the UnitingCare Burwood Preschool (Applicant) made an application to the Fair Work Commission (Commission) to terminate the UnitingCare Burwood Preschool Enterprise Agreement 2011-2013. (Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement had a nominal expiry date of 30 September 2013.

1. The application was made in the context of the employees of UnitingCare Burwood Preschool having voted to transition onto the Uniting Early Learning Enterprise Agreement 2017-2019 (Uniting Agreement).

1. 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.

1. The application was supported by a Statutory Declaration made by Kimberley Howlett-Russell, Human Resources Business Partner of Uniting. Ms Howlett-Russel 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 31 July 2018 the Applicant held a staff meeting to discuss the information regarding the transition to the Uniting Agreement,

b)on 14 August 2018 the Applicant held a staff meeting to discuss relevant enterprise agreements,

c)emailed all relevant documentation to staff, and

d)from 31 August 2018 to 3 September 2018 voting commenced.

1. Ms Howlett-Russell also declared that of the 8 employees covered by the Agreement, 7 cast a valid vote and all 7 voted to terminate the Agreement.

1. On 17 September 2018 the Commission directed that:

a)by 4:00 pm Monday, 24 September 2018 the Applicant must email a copy of its Directions to its employees and any relevant employee organisation;

b)by 4:00 pm Monday 1 October 2018 a director or officer of the applicant must file in the Commission and serve on any relevant employee organisation, a statutory declaration confirming compliance with its Directions; and

c)by 4:00 pm Monday, 15 October 2018 any employee or any organisation which opposes the termination of the Agreement must file in the  Commission any submissions, written statements and documents they rely upon in opposition to the Agreement being terminated.

1. On 18 September 2018 the Applicant filed a statutory declaration confirming that the Directions had been emailed to employees and relevant employee organisations.

1. No submissions in opposition were filed.

1. 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.

1. In accordance with s.224 of the Act, the termination will come into effect today.

COMMISSIONER

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