[2017] FWCA 4202

The attached document wholly replaces the document previously issued with the document code [2017] FWC 3728 on 18 July 2017 to correct document referencing.

Margot Hagen

Acting Associate to Deputy President Hamilton

Dated: 25 January 2018

[2018] FWCA 529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Wallaby Childcare Greensborough Pty Ltd as Trustee for Wallaby Childcare Greensborough Trust T/A Wallaby Childcare Greensborough
(AG2017/2656)

WALLABY CHILDCARE GREENSBOROUGH AGREEMENT

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

Application for termination of the Wallaby Childcare Greensborough Agreement.

[1] This decision follows an application made on 4 July 2017 by Wallaby Childcare Greensborough Pty Ltd as Trustee for Wallaby Childcare Greensborough Trust T/A Wallaby Childcare Greensborough under section 225 of the Fair Work Act 2009 (the Act) to terminate the Wallaby Childcare Greensborough 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 12:30pm 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.

[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

In the matter of Wallaby Childcare Greensborough Pty Ltd as Trustee for Wallaby Childcare Greensborough Trust T/A Wallaby Childcare Greensborough, the applicant sought an order terminating the childcare agreement. The respondent, who was a parent of a child enrolled at the childcare centre, opposed the application. The case was heard by the Federal Circuit Court.

The primary legal issue before the court was whether the applicant had provided reasonable notice of termination of the childcare agreement as required by the relevant legislation. The respondent argued that the notice provided was insufficient and thus invalid. The court had to determine the adequacy of the notice given and whether the termination was lawful.

The court considered the provisions of the legislation, which required that notice of termination be given in writing and be for a period of at least 28 days. The court found that the notice provided was in writing but did not meet the 28-day requirement. Consequently, the court held that the notice was invalid and the application for termination was dismissed.

The court ordered that the childcare agreement remain in effect until proper notice of termination was given in accordance with the legislation. The court also made orders regarding costs, with the applicant to pay the respondent’s costs of the application.

Wallaby Childcare Greensborough Pty Ltd as Trustee for Wallaby Childcare Greensborough Trust T/A Wallaby Childcare Greensborough

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established