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austlii:cth/FWCA/2025/1301
General information, not legal advice.
FWCA
2025-04-16
Original judgment source is linked above.
s.222 - Application for approval of a termination of an enterprise agreement
Blue Gum Early Learning And Child Care Centre Incorporated
BLUE GUM EARLY LEARNING & CHILD CARE CENTRE ENTERPRISE AGREEMENT 2013-2017
Application for termination of the Blue Gum Early Learning & Child Care Centre Enterprise Agreement 2013-2017
[1] On 3 April 2025, Blue Gum Early Learning and Child Care Centre (the Applicant) applied for the termination of the Blue Gum Early Learning And Child Care Centre Enterprise Agreement 2013-2017 (the Agreement)[1] under s 222 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Agreement is a single enterprise agreement. It covers the work of employees engaged in the 'children's services and early childhood education industry'[2] including long day care, occasional care, nurseries, childcare centres and the like. The nominal expiry date of the Agreement is 10 October 2017. If the Agreement did not apply to the employees' employment, the same employees would be covered by the Children's Services Award 2010[3] and the Educational Services (Teachers) Award 2020[4] (the Awards).
[3] The Applicant has standing to apply for the termination of the Agreement under s 222(1) of the Act. The application was accompanied by the requisite documentation under s 222(2) and was made within the prescribed statutory period.[5] Section 222 deals with circumstances where termination of an agreement is sought on the basis that termination has been agreed to. The Applicant says that a majority of employees have agreed to terminate the Agreement in accordance with the provisions of the Act.
[4] 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. Section 223 of the Act is as follows:
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.
[5] On the facts before me, I am satisfied that a majority of employees voted in favour of the termination of the Agreement, and that there are no other reasonable grounds for believing that the termination was not agreed. Sections 223(b) and (c) have been complied with.
[6] I am further satisfied that it is appropriate to approve the termination and that the employees covered by the Agreement were provided with a reasonable opportunity to decide whether to approve the termination.
[7] It follows that the statutory requirements have been met. Accordingly, the Agreement is terminated and pursuant to s 224 of the Act, the termination will take effect from the date of this decision. An Order[6] to this effect issues concurrently with this decision. My detailed reasons follow.
[8] In support of its application, the Applicant filed a declaration of Rachel Black Frame (Frame),[7] in addition to other materials. It was apparent from the materials filed, particularly the document titled 'Termination of Enterprise Agreement - Voting Process', that the Applicant had previously applied under s 222 of the Act to terminate the Agreement. The introductory paragraphs of that document stated:
As you may recall, in November 2024 (following a number of team meetings), all Blue Gum
employees were invited to vote, via electronic ballot, to either terminate or keep the current
The majority of employees voted to terminate the Enterprise Agreement. On this basis, in
December 2024, Blue Gum formally applied to the Fair Work Commission to terminate the
Enterprise Agreement, which passed its nominal expiry date in 2017. Upon receiving Blue Gum's application, the Fair Work Commission has requested that we provide all employees with updated information regarding the basis for the termination and subsequently, for all
employees to participate in another voting process.
[9] In short, Frame detailed the following:
on 28 January 2025, a discussion was held with employees about the need to conduct another vote to terminate the Agreement. Minutes of the meeting were taken and included the following:
The current EBA is outdated, making it difficult for management to follow.
The Award includes several new benefits and updates not covered in the
Management operates under the same industrial instrument as educators.
While special leave is not a standard benefit under Modern Awards, it is our
We have taken into account the benefits valued by staff, such as special
leave, extra non-contact time, and additional staff members, and it is our
Blue Gum is committed to increasing educators' wages and, as the gender
evaluation process happens, it is likely that wages will increase significantly.
However, as wages increase there may need to be adjustments made to
some benefits currently offered by Blue Gum for it to remain a viable
service. This would only happen after consultation with employees.
e) on 21 March 2025, an email was sent with information regarding the termination of the Agreement and the voting process - reminding employees that voting closed on that day.[8]
[10] As noted, I am satisfied that the termination of the Agreement was agreed to by a majority of the employees who cast a valid vote to approve the termination.
[11] Section 220(2) of the Act provides that before making a request that its employees approve the termination, an employer must:
(a) take all reasonable steps to notify the employees of the following:
(i) the time and place at which the vote will occur;
(b) give the employees a reasonable opportunity to decide whether they want to
[12] Section 223(a) of the Act sets out, amongst other factors, that the Commission must approve the termination of an enterprise agreement if satisfied that the employer complied with s 220(2).
[13] From a statutory construction point of view, the subject of s 223(a) could be said to be the reasonableness of the opportunity to decide not the reasonableness of the employer's conduct at large.
[14] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) indicates by way of example that this provision may involve the employer 'allowing employees sufficient time between making the request and the time of the vote to consider the effect of the termination on their terms and conditions'.[9]
[15] In Carl Zeiss Vision Australia Holdings Ltd, (Zeiss) the Deputy President identified that s 223(a) lends itself to a view that issues relevant under s 223(a) are concerned with the reasonableness of the logistics and process for decision-making and voting rather than the substantive content of material being considered.[10] The Deputy President expressed that while he preferred the narrower construction, some decisions of the Commission had adopted a broader construction suggesting that 'the lack of any explanation or misleading or incorrect explanations may well be a factor in a consideration as to whether there has been a reasonable opportunity'.[11]
[16] Ultimately, in Zeiss, the Deputy President concluded it unnecessary to determine whether a claim that explanatory material may be misleading fell strictly within the expression 'reasonable opportunity to decide' under s 223(a), because it would (if not relevant under s 223(a)) be relevant in the catch-all under s 223(d), which requires the Commission to consider whether termination 'is appropriate'.[12]
[17] Having considered all the material before me, I am satisfied that the employees were notified of the time, 'place' and voting method, and were provided with a reasonable opportunity to decide whether they wanted to approve the proposed termination. The explanatory materials are detailed. The Applicant provided opportunity for the employees to make enquires about the termination of the Agreement and provided information on why the termination of the Agreement was sought in addition to the impact of the termination of the Agreement.
[18] The evidence, on balance, supports the conclusion that it is appropriate to approve the termination.
[19] On 8 April 2025, the Commission sought the view of the United Workers' Union (UWU), an employee organisation covered by the Agreement, on the application and request to terminate the Agreement. On 9 April 2025, the UWU informed the Commission that it did not oppose the application.
[20] As observed, having considered the material before me, including the application and Frame's evidence, I am satisfied that the requirements of s 223 of the Act have been met. Therefore, in accordance with s 223, I must terminate the Agreement. Under s 224 of the Act, a termination operates from the day specified in the decision to terminate the agreement. That date can be found at the commencement of this decision.
[1] [2013] FWCA 7933; AE404686.
[2] Blue Gum Early Learning And Child Care Centre Enterprise Agreement 2013-2017 clause 3.
[5] Fair Work Act 2009 (Cth) s 222(3).
[7] Form F24A - declaration in support of termination of an enterprise agreement.
[9] Explanatory Memorandum, Fair Work Bill 2008 (Cth), 146 [932].
[10] [2017] FWCA 5825, [39] (Zeiss).
[11] Ibid [40], citing Barminco Ltd [2015] FWCA 219, [20] (Commissioner Lee); Advanced Plumbing and Drains Pty Ltd [2015] FWCA 8740, [26] (Kovacic DP).
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