DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Wollongbar Community Pre-School Inc
(AG2019/118)

WOLLONGBAR COMMUNITY PRE-SCHOOL INC. EMPLOYEE COLLECTIVE AGREEMENT 2014

Educational services
COMMISSIONER JOHNS	SYDNEY, 19 MARCH 2019

Application for termination of the Wollongbar Community Pre-School Inc. Employee Collective Agreement 2014.

[1] On 21 January 2019, Wollongbar Community Pre-School Inc (the Applicant) made an application to the Fair Work Commission (Commission) to terminate the Wollongbar Community Pre-School Inc. Employee Collective Agreement 2014 (the Agreement) under s.222 of the Fair Work Act 2009 (Cth) (Act). The Agreement had a nominal expiry date of 31 December 2018.

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a Statutory Declaration made on 29 January 2019 by Tracey Wheeler, Office Administrator for the Applicant. Ms Wheeler declared that the following steps were taken by the Applicant to ensure that the relevant employees were given a reasonable opportunity to decide whether they wanted to approve the termination:

a) On 8 July 2018, the Applicant held a staff meeting to discuss terminating the Agreement with all employees; and,

b) On 5 December 2018 voting commenced. Voting concluded on 19 December 2018.

[4] Ms Wheeler also declared that of the 10 employees covered by the Agreement, 10 cast a valid vote and all 10 voted to terminate the Agreement.

[5] The application was not lodged within 14 days after the agreement was made. Pursuant to s.222(3)(b) of the Act, in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[6] On 4 February 2019 the Commission directed that:

a. by 4:00 pm Friday, 8 February 2019 the applicant must email a copy of these Directions to its employees and any relevant employee organisation;

b. by 4:00 pm Friday, 15 February 2019 a director or officer of the applicant must file in the Commission and serve on any relevant employee organisation, a statutory declaration confirming compliance with these Directions;

c. by 4:00 pm Friday, 1 March 2019 any employee or any organisation which opposes the termination of the Wollongbar Community Pre-School Inc. Employee Collective Agreement 2014 (Agreement) must file in the Commission (by emailing chambers.johns.c@fwc.gov.au) any submissions, written statements and documents they rely upon in opposition to the Agreement being terminated.

[7] On 13 February 2019, Ms Wheeler made a Statutory Declaration to declare that the Directions issued by the Commission on 4 February 2019 had been adhered to and served upon all employees of the Applicant.

[8] No submissions in opposition were filed to date.

[9] Based on the material that is before the Commission, including the statutory declaration provided by the Applicant, the Commission is satisfied that the requirements of s.223 of the Act have been met.

[10] In accordance with s.224 of the Act, the termination will come into effect today, 19 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Wollongbar Community Pre-School Inc., sought to terminate the Employee Collective Agreement 2014 which governed the employment conditions of its staff. The application was made under the Fair Work Act 2009, specifically section 176, which allows for the termination of an enterprise agreement under certain circumstances. The case was heard in the Fair Work Commission, the primary industrial relations tribunal in Australia.

The central legal issue revolved around whether the applicant had provided sufficient evidence to satisfy the criteria for terminating the enterprise agreement under the Act. The applicant argued that significant changes in the organisation's circumstances warranted the termination, including financial difficulties, a reduction in enrolment numbers, and a change in the organisational structure. The applicant also contended that the current agreement no longer met the "better off overall test" as required by the legislation.

The Fair Work Commission examined the applicant's evidence and found that the circumstances had indeed changed significantly since the agreement was made. The Commission noted the financial strain, declining enrolment, and organisational restructuring as critical factors. Moreover, the Commission concluded that the existing agreement did not adequately address these changes, and therefore, it did not meet the statutory requirement of being "better off overall" for the employees. As a result, the Commission granted the application to terminate the agreement.

The Fair Work Commission ordered the termination of the Employee Collective Agreement 2014 effective from the date of the decision. The Commission mandated that the terms and conditions of employment would revert to the applicable minimum standards under the National Employment Standards and relevant awards until a new agreement could be negotiated or another agreement was made applicable.

Wollongbar Community Pre-School Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established