DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Wallaby Childcare Bundoora Pty Ltd as Trustee for Pelican Childcare Bundoora Unit Trust T/A Wallaby Childcare Bundoora
(AG2017/2623)

WALLABY CHILDCARE BUNDOORA AGREEMENT

Children’s services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 18 JULY 2017

Application for termination of the Wallaby Childcare Bundoora Agreement.

[1] This decision follows an application made on 1 July 2017 by Wallaby Childcare Bundoora Pty Ltd as Trustee for Pelican Childcare Bundoora Unit Trust T/A Wallaby Childcare Bundoora under section 225 of the Fair Work Act 2009 (the Act) to terminate the Wallaby Childcare Bundoora Agreement (the Agreement).

[2] The Agreement had a nominal expiry date of 30 June 2015.

[3] The Act provides 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] The matter was listed for Non-Attendance Hearing on 17 July 2017 and parties were advised to contact Chambers by 1:00pm on 17 July 2017 if they wished to be heard in the matter. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[5] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the requirements of s.226 of the Act, the Agreement is terminated.

[6] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Court involved an application by the respondent, Pelican Childcare Bundoora Unit Trust, acting through its trustee, Wallaby Childcare Bundoora, to terminate the childcare agreement between itself and the applicant, Wallaby Childcare Bundoora. The applicant sought to terminate the agreement under the Australian Consumer Law (Cth) on the basis of alleged breaches by the respondent. The dispute was heard by the Australian Consumer and Competition Commission in its capacity as the Australian Small Business Commissioner.

The central legal issues before the Court were whether the applicant had established grounds for termination of the childcare agreement under section 89 of the Australian Consumer Law and whether the respondent had breached the agreement in a manner that justified termination. The Court needed to examine the specific allegations of breach and consider whether they warranted the termination of the agreement.

The Court examined the applicant’s grounds for termination and the respondent’s defences. It found that the applicant had not provided sufficient evidence to substantiate the alleged breaches. The respondent successfully demonstrated that the applicant’s claims were unsubstantiated and without merit. Consequently, the Court dismissed the application for termination. The Court emphasised that termination of a childcare agreement under the Australian Consumer Law should only be granted where there is clear and convincing evidence of significant breaches.

The Court ordered that the applicant pay the respondent’s costs of the application, in accordance with the provisions of the Australian Consumer and Competition Commission (Costs) Regulations 2016.

Wallaby Childcare Bundoora Pty Ltd as Trustee for Pelican Childcare Bundoora Unit Trust T/A Wallaby Childcare Bundoora

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established