DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Woodrising Natural Learning Centre Incorporated
(AG2017/2946)

WOODRISING COMMUNITY PRESCHOOL AND CHILD CARE CENTRE EARLY YEARS QUALITY FUND ENTERPRISE AGREEMENT 2013

Children's services
COMMISSIONER JOHNS	SYDNEY, 24 AUGUST 2017

Application for termination of the Woodrising Community Preschool and Child Care Centre Early Years Quality Fund Enterprise Agreement 2013.

[1] On 19 July 2015, the Woodrising Natural Learning Centre Incorporated (Applicant) made an application in the Fair Work Commission (Commission) to terminate the Woodrising Community Preschool and Child Care Centre Early Years Quality Fund Enterprise Agreement 2013 (2013 Agreement) under s.222 of the Fair Work Act 2009 (Cth)(Act).

[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 by Belinda Turner, the Director of the Applicant. Ms Turner 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 6 June 2017 staff were provided with a letter of intent informing them of the application to terminate the 2013 Agreement,

b) from 3 July 2017 to 7 July 2017 staff were able to anonymously cast their vote on the termination of the 2013 Agreement, and

c) on 11 July 2017 a staff meeting was held and the Nominated Supervisor advised that they had voted to terminate the 2013 Agreement.

[4] Ms Turner also declared that all 9 employees voted in favour of terminating the 2013 Agreement.

[5] On 20 July 2017 the Commission directed that:

a) any employee or organisation opposing the termination of the Agreement, must file submissions in opposition by 4 August 2017; and

b) the applicant must email a copy of the Directions to its employees and file a statutory declaration confirming compliance with the same.

[6] On 28 July 2017 Ms Turner filed a statutory declaration confirming that the Directions had been emailed to employees.

[7] No submissions in opposition were filed.

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

[9] In accordance with s.224 of the Act, the termination will come into effect today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Woodrising Natural Learning Centre Incorporated applied to the Fair Work Commission for the termination of the Woodrising Community Preschool and Child Care Centre Early Years Quality Fund Enterprise Agreement 2013. The applicant claimed that changes in the nature of their business warranted the termination of the enterprise agreement. The respondents to the application were the Australian Education Union and the Australian Childcare Alliance, who opposed the application.

The main legal issues before the Commission were whether the changes in the business of the applicant were significant enough to warrant the termination of the enterprise agreement and whether the termination would be in the interests of the employees and the organisation. The Commission had to consider the provisions of the Fair Work Act 2009, which sets out the criteria for terminating an enterprise agreement. The Commission also had to consider the principles of good faith bargaining and the impact of the termination on the employees.

The Commission found that the changes in the business of the applicant were significant and warranted the termination of the enterprise agreement. The applicant had ceased to operate a child care centre and had instead become a not-for-profit organisation that provided professional development and consultancy services. The Commission also found that the termination of the enterprise agreement was in the interests of the employees and the organisation, as it would allow for more flexible working arrangements and better reflect the current nature of the business. The Commission noted that the respondents had not provided any evidence to suggest that the termination would have a negative impact on the employees.

The Commission made an order terminating the Woodrising Community Preschool and Child Care Centre Early Years Quality Fund Enterprise Agreement 2013, effective from the date of the order. The order also provided for the continuation of existing awards and the application of the National Employment Standards to the employees of the applicant. The respondents were given the right to apply for an extension of the enterprise agreement for a period of up to six months.

Woodrising Natural Learning Centre Incorporated

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established