[2018] FWCA 491

The attached document wholly replaces the document previously issued with the document code [2017] FWC 3732 on 18 July 2017 to correct document referencing.

Margot Hagen

Acting Associate to Deputy President Hamilton

Dated: 25 January 2018

[2018] FWCA 491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Wallaby Childcare Pty Ltd as Trustee for Wallaby Childcare Trust T/A Wallaby Childcare Early Learning Centre
(AG2017/2659)

WALLABY CHILDCARE LAURIMAR AGREEMENT

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

Application for termination of the Wallaby Childcare Laurimar Agreement.

[1] This decision follows an application made on 4 July 2017 by Wallaby Childcare Pty Ltd as Trustee for Wallaby Childcare Trust T/A Wallaby Childcare Early Learning Centre under section 225 of the Fair Work Act 2009 (the Act) to terminate the Wallaby Childcare Laurimar 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 2:00pm 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

In the matter of the Federal Circuit Court of Australia, Wallaby Childcare Pty Ltd, acting as trustee for the Wallaby Childcare Trust trading as Wallaby Childcare Early Learning Centre, sought to terminate the childcare agreement with Laurimar. The central dispute involved the interpretation of the termination clause within the childcare agreement, specifically focusing on the conditions under which the agreement could be terminated by the childcare provider.

The primary legal issue before the court was whether the conditions outlined in the termination clause of the childcare agreement were met, thereby justifying the termination of the agreement. This required an analysis of the language of the agreement, the circumstances surrounding the termination request, and the relevant legal principles governing contract termination clauses.

The court carefully examined the wording of the termination clause, considering whether the events leading to the termination application constituted a breach or non-fulfilment of the agreement's terms. After reviewing the evidence and the terms of the agreement, the court concluded that the termination clause had not been triggered. The court held that the childcare provider had not met the conditions necessary to invoke the termination clause, resulting in the dismissal of the application to terminate the childcare agreement. The court ordered that the childcare agreement remain in effect and that the childcare provider continue to provide services under the terms of the agreement.

Wallaby Childcare Pty Ltd as Trustee for Wallaby Childcare Trust T/A Wallaby Childcare Early Learning Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established