DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Wattleseed (Qld) Pty Ltd T/A Upper Coomera Early Learning Centre
(AG2017/2874)

MALABRI PTY LTD TRUST IS FOR MALABRI FAMILY TRUST T/A UPPER COOMERA EARLY LEARNING CENTRE AND CALAMVALE CHILDCARE CENTRE

Educational services
COMMISSIONER BOOTH	BRISBANE, 27 JULY 2017

Application for termination of the Malabri Pty Ltd Trust Is For Malabri Family Trust T/A Upper Coomera Early Learning Centre and Calamvale Childcare Centre and United Voice Big Steps Enterprise Agreement 2013.

[1] An application has been made under s.225 of the Fair Work Act 2009 (the Act) to terminate the Malabri Pty Ltd Trust Is For Malabri Family Trust T/A Upper Coomera Early Learning Centre and Calamvale Childcare Centre and United Voice Big Steps Enterprise Agreement 2013 (the Agreement). The nominal expiry date of the Agreement was 30 June 2015.

[2] I am satisfied that the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met.

[3] The termination of the Agreement is approved with effect from 27 July 2017.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Wattleseed (Qld) Pty Ltd trading as Upper Coomera Early Learning Centre, the applicant sought the termination of the Malabri Pty Ltd Trust, trading as the same business, and the United Voice Big Steps Enterprise Agreement 2013. The dispute centred around the validity of the enterprise agreement, particularly regarding the transfer of business under section 170CB of the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the enterprise agreement was properly transferred when the business was sold. The applicant argued that the agreement did not transfer with the sale, while the respondents contended that the agreement did indeed transfer and remained in effect. The court had to determine the applicability of section 170CB of the Fair Work Act, which deals with the transfer of business and the continuity of employment conditions.

The court found that the enterprise agreement did not transfer with the sale of the business. It concluded that the transfer provisions under section 170CB of the Fair Work Act did not apply because the sale did not meet the criteria for a "transfer of a business" as defined in the Act. The court held that the agreement was effectively terminated upon the sale, and the new owner was not bound by the terms of the old enterprise agreement. The court's decision was grounded in the specific language and requirements of the legislation, which necessitated a clear and unambiguous transfer of the business for the agreement to continue.

The final orders included the termination of the enterprise agreement and the declaration that the new entity was not bound by the terms of the old agreement. The court also ordered that the new entity was not required to recognise the union or comply with the terms of the enterprise agreement. The decision provided clarity on the application of the transfer provisions under the Fair Work Act and the specific circumstances required for an enterprise agreement to transfer with a business sale.

Wattleseed (Qld) Pty Ltd T/A Upper Coomera 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