[2018] FWCA 526

The attached document wholly replaces the document previously issued with the document code [2017] FWC 3731 on 18 July 2017 to correct document referencing.

Margot Hagen

Acting Associate to Deputy President Hamilton

Dated: 25 January 2018

[2018] FWCA 526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Wallaby Childcare Epping Pty Ltd as trustee for Wallaby Childcare Epping Trust T/A Wallaby Childcare Epping
(AG2017/2657)

WALLABY CHILDCARE EPPING AGREEMENT

Children’s services
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 29 AUGUST 2017

Application for termination of the Jingili Kindergarten and United Voice Big Steps Enterprise Agreement 2013 Application for termination of the Wallaby Childcare Epping Agreement.

[1] This decision follows an application made on 4 July 2017 by Wallaby Childcare Epping Pty Ltd as trustee for Wallaby Childcare Epping Trust T/A Wallaby Childcare Epping under section 225 of the Fair Work Act 2009 (the Act) to terminate the Wallaby Childcare Epping 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.”

[1] The matter was listed for Non-Attendance Hearing on 17 July 2017 and parties were advised to contact Chambers by 1:30pm 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.

[2] 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.

[3] 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 applicant, Wallaby Childcare Epping Pty Ltd as trustee for the Wallaby Childcare Epping Trust trading as Wallaby Childcare Epping, applied to the Fair Work Commission to terminate the Jingili Kindergarten and United Voice Big Steps Enterprise Agreement 2013, as well as the Wallaby Childcare Epping Agreement. The applicant sought to terminate these agreements due to financial difficulties and the inability to continue operating under the terms of the existing agreements.

The central legal issues before the court were whether the applicant had demonstrated that the agreements should be terminated on the grounds of financial hardship, and whether termination would be in the best interests of the employees and the community served by the childcare services. The court needed to consider the criteria for termination under the Fair Work Act 2009 and assess the evidence presented regarding the applicant's financial situation and the impact of termination on the employees and the community.

The Fair Work Commission found that the applicant had met the criteria for termination of the agreements due to financial hardship. The court noted that the applicant had provided substantial evidence of its financial difficulties, including the inability to meet ongoing operational costs and liabilities. The court also considered the potential impact of termination on employees and the community, but concluded that termination was necessary to prevent further financial deterioration and to protect the interests of the applicant and its creditors. The court ordered the termination of both the Jingili Kindergarten and United Voice Big Steps Enterprise Agreement 2013, and the Wallaby Childcare Epping Agreement, effective from the date of the decision.

Wallaby Childcare Epping Pty Ltd as trustee for Wallaby Childcare Epping Trust T/A Wallaby Childcare Epping

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established