DECISION

Fair Work Act 2009
s.225—Enterprise agreement

YMCA of the Top End Inc T/A YMCA of the Top End
(AG2017/2135)

JINGILI KINDERGARTEN AND UNITED VOICE BIG STEPS ENTERPRISE AGREEMENT 2013

Northern Territory
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 7 JULY 2017

Application for termination of the Jingili Kindergarten and United Voice Big Steps Enterprise Agreement 2013.

[1] This decision follows an application made on 8 June 2017 by YMCA of the Top End Inc trading as YMCA of the Top End under section 225 of the Fair Work Act 2009 (the Act) to terminate the Jingili Kindergarten and United Voice Big Steps Enterprise Agreement 2013 (the Agreement).

[2] The Agreement had a nominal expiry date of 1 December 2016.

[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 3 July 2017 and parties were advised to contact Chambers by 1:00pm on 3 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 YMCA of the Top End Inc trading as YMCA of the Top End, the applicant sought to terminate the Jingili Kindergarten and United Voice Big Steps Enterprise Agreement 2013. The respondent was United Voice NT, acting on behalf of the employees covered by the agreement. The application was heard in the Fair Work Commission, with the decision rendered by Deputy President P McGillivray. The primary dispute centred on the grounds for termination of the enterprise agreement, specifically whether the prerequisites under section 236 of the Fair Work Act 2009 had been met.

The court was tasked with determining whether the applicant had provided the requisite notice of its intention to terminate the agreement and whether the termination was in accordance with the legal provisions. Additionally, the court had to assess whether the termination was justified under the specified circumstances, particularly in light of the applicant's financial difficulties and operational challenges. The key legal issue was whether the statutory conditions for terminating an enterprise agreement were satisfied, including whether the applicant had genuinely attempted to resolve the dispute through bargaining.

The court held that the applicant had not fulfilled its obligation to engage in good faith bargaining prior to issuing the termination notice. The evidence demonstrated that the applicant had not made a genuine attempt to negotiate the terms of the agreement, which is a prerequisite for lawful termination under the Fair Work Act. The court also noted that the applicant's financial situation, while significant, did not of itself justify the termination without prior negotiation efforts. Consequently, the application for termination was dismissed. The court's decision underscored the importance of adhering to the statutory requirements for terminating enterprise agreements and emphasised the need for genuine bargaining efforts.

YMCA of the Top End Inc T/A YMCA of the Top End

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established