s.225 - Enterprise agreement

Craigslea Kindergarten & Preschool Association Inc

Application for termination of the Craigslea Kindergarten Early Childhood Enterprise Agreement 2019

• [1] On 2 September 2025, Craigslea Kindergarten & Preschool Association Inc (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Craigslea Kindergarten Early Childhood Enterprise Agreement 2019 (the Agreement). The Agreement passed its nominal expiry date on 31 December 2021.

• [2] In November 2025, four unfair dismissal applications naming the Employer as the Respondent were allocated to me. Those applications noted that the Employer had been placed into administration. Upon allocation of those applications to me, I sought confirmation from the administrators as to the status of the Employer following a creditors meeting that had been scheduled. The administrators of the Employer advised as follows:

"We can confirm that at the second meeting of creditors on 30 October 2025, it was resolved that the Respondent be wound up and the Administrators be appointed Liquidators".

• [3] Accordingly, having regard to s.500(2) of the Corporations Act 2001 (the Corporations Act), I issued a decision[1] staying the unfair dismissal application until leave of the Court is granted.

• [4] Section 500(2) of the Corporations Act provides:

"(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes."

• [5] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of 'court' and 'Court':

(c) the Federal Circuit and Family Court of Australia (Division 1);

(d) a court to which section n41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression "the Court"), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts."

• [6] In Smith & Ors v Trollop Silverwood & Beck Pty Ltd,[2] the Full Bench held that the Commission is not a "Court" and is therefore unable to grant leave as prescribed in s.500(2) of the Corporations Act. Further, in Silalahi v CMI Industrial (Forge),[3] Commissioner Jones considered relevant authorities and found that an application pursuant to s.394 of the Act falls within the meaning of "civil proceedings" in s.500(2) of the Corporations Act.

• [7] Likewise, I am satisfied that an application to the Commission pursuant to s.225 of the Act falls within meaning of "civil proceedings". I am therefore satisfied s.500(2) of the Corporations Act applies to this application.

• [8] Accordingly, I am satisfied that the application cannot proceed any further in the Commission except by leave of the Court.

The Employer's application is stayed until leave of the Court is granted

[1] Saul & Ors v Craigslea Kindergarten & Preschool Association Incorporated [2025] FWC 3399.

[2] (2003) 142 IR 137.

[3] [2012] FWA 7275, [11]-[16].

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