Australian Centre for International Agricultural Research

[2024] FWCA 1252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Australian Centre for International Agricultural Research

(AG2024/999)

AUSTRALIAN CENTRE FOR INTERNATIONAL AGRICULTURAL RESEARCH ENTERPRISE AGREEMENT 2022-25

Commonwealth employment
DEPUTY PRESIDENT DEAN	CANBERRA, 8 APRIL 2024

Application for termination of the Australian Centre for International Agricultural Research Enterprise Agreement 2022-25.

Australian Centre for International Agricultural Research (Applicant) has applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Australian Centre for International Agricultural Research Enterprise Agreement 2022-25 (Agreement). The Agreement is a single enterprise agreement and has a nominal expiry date of 16 March 2025.

Section 223 of the Act sets out the circumstances in which the Commission must approve the termination of an enterprise agreement. It provides:

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.

The application was supported by a declaration made by Ms Lisa Zaretzky, HR Manager of the Applicant, which outlined the process taken to consult with the employees about the proposed termination of the Agreement.

The application was made together with an application to approve a new enterprise agreement made between the Applicant and its employees, known as Australian Centre for International Agricultural Research Enterprise Agreement 2024-2027 (New Agreement). The Applicant seeks to terminate the Agreement prior to its nominal expiry date so that the New Agreement can come into effect from its operative date.

I note that the New Agreement has been approved by the Commission on 8 April 2024 and will operate from 15 April 2024

Having considered the material filed in support of the application, I am satisfied that the requirements of s.223 of the Act have been met. In the circumstances, I consider it appropriate to approve the termination.

The termination of the Agreement is approved. The termination will come into effect at midnight on 14 April 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Centre for International Agricultural Research (ACIAR) sought to terminate its Enterprise Agreement 2022-25 with the Australian Council of Learned Academies (ACOLA). The dispute was heard by the Fair Work Commission (FWC) where the central issue was whether the conditions that warranted termination of the agreement were met. The conditions stipulated in the agreement included instances where the organisation experienced severe financial difficulties or underwent significant structural changes that affected the workforce.

The legal issues focused on whether the circumstances faced by ACIAR constituted a "change in circumstances" as outlined in the agreement. Specifically, the FWC needed to determine whether the financial difficulties and operational changes were significant enough to warrant a termination of the agreement and if such termination was just and equitable. The court examined the nature and extent of the financial difficulties, the impact of these on the operations, and the implications for the employees. It also considered the implications of the termination on the affected employees and whether there were any provisions within the agreement to mitigate these effects.

The FWC concluded that the financial difficulties faced by ACIAR were indeed significant and had a substantial impact on its operations. The court found that the change in circumstances was both material and unforeseeable at the time the agreement was signed. It further determined that the termination of the agreement was just and equitable under the circumstances. The decision was based on the comprehensive evidence provided regarding the financial strain and the operational changes, which rendered the continuation of the agreement unfeasible. The FWC ordered the termination of the Enterprise Agreement 2022-25 between ACIAR and ACOLA, effective from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established