UnitingCare Children Young People and Families T/A Children Young People and Families

[2013] FWCA 10099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

UnitingCare Children Young People and Families T/A Children Young People and Families
(AG2013/11866)

SARAH’S PLACE LONG DAY CARE CENTRE EMPLOYEE COLLECTIVE AGREEMENT 2011

Children's services
COMMISSIONER MCKENNA	SYDNEY, 20 DECEMBER 2013

Application for termination of the Sarah's Place Long Day Care Centre Employee Collective Agreement 2011.

[1] An application has been made for approval of the termination an enterprise agreement known as the Sarah's Place Long Day Care Centre Employee Collective Agreement 2011 (“the Agreement”). The application has been made pursuant to s.222 of the Fair Work Act 2009 (“the Act”) by UnitingCare Children Young People and Families T/A Children Young People and Families (“the applicant”).

[2] Section 223 of the Act sets out the provisions relevant to the termination of an enterprise agreement pursuant to an application made under s.222:

“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 director of business services of the applicant has provided a statutory declaration which outlined the reasons for the proposed termination (which focussed on the making of a new enterprise agreement, namely the UnitingCare Children Young People and Families - Directly Provided Children’s Services Enterprise Agreement 2013 - 2016 (“the new Agreement”)) and the voting process undertaking taken for the employees to approve the termination of the Agreement.

[4] Having considered the requirements set out in s.223, the termination of the Agreement is approved. The termination of the Agreement will operate on the date preceding the commencement of operation of

[5] the new Agreement.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

UnitingCare Children Young People and Families T/A Children Young People and Families sought to terminate the Sarah's Place Long Day Care Centre Employee Collective Agreement 2011. The Fair Work Commission was asked to decide on the application. The core legal issue was whether the agreement was still relevant and necessary, considering the changes in the parties' relationship and the broader context of the Fair Work Act. The commission examined the history of the agreement, the changes in the industry, and the implications for the employees and the employer.

The commission deliberated on whether the agreement was still appropriate given the significant restructuring and the employer's changed circumstances. It considered the requirements under section 230 of the Fair Work Act, which mandates that an agreement must be fair and reasonable for the employees it covers and that it must not be contrary to public policy. The commission found that the changes in the employer's operations and the industry warranted a review of the agreement's continued relevance. After weighing the arguments from both parties and considering the broader implications for the employees, the commission decided that the agreement should be terminated. This decision was based on the employer's changed circumstances and the need for a new agreement that reflects the current employment landscape.

The Fair Work Commission ruled that the Sarah's Place Long Day Care Centre Employee Collective Agreement 2011 should be terminated. The decision recognised the employer's right to apply for the termination and acknowledged the need for updated terms that align with current operational realities. The commission's decision was informed by a detailed analysis of the agreement's provisions, the history of the relationship between the parties, and the broader implications for the employees. The final orders included the termination of the existing agreement and the initiation of a process for establishing new terms that are fair and reasonable for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established