Commonwealth of Australia represented by the National Indigenous Australians Agency Summary

[2024] FWCA 1025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Commonwealth of Australia represented by the National Indigenous Australians Agency

(AG2024/828)

NATIONAL INDIGENOUS AUSTRALIANS AGENCY ENTERPRISE AGREEMENT 2021-2024

Commonwealth employment
DEPUTY PRESIDENT DEAN	CANBERRA, 22 MARCH 2024

Application for termination of the National Indigenous Australians Agency Enterprise Agreement 2021-2024.

Commonwealth of Australia represented by the National Indigenous Australians Agency (Applicant) has applied pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the National Indigenous Australians Agency Enterprise Agreement 2021-2024 (Agreement). The Agreement is a single enterprise agreement and has a nominal expiry date of 1 August 2024.

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 indicated that a new enterprise agreement made between the Applicant and its employees, known as National Indigenous Australians Agency Enterprise Agreement 2024-2027, was approved by the Commission on 19 March 2024 with an operative date of 26 March 2024. 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.

The application was supported by a declaration made by Mr Bryce McNicol, the Agency Lead Negotiator, which outlined the process taken to consult with the employees about the proposed termination of the Agreement.

CPSU, the Community and Public Sector Union, being the employee organisation covered by the Agreement, advised the Commission that they support the termination.

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 25 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court, the Commonwealth of Australia, represented by the National Indigenous Australians Agency, applied for the termination of the National Indigenous Australians Agency Enterprise Agreement 2021-2024. The application was made under section 236 of the Fair Work Act 2009, and the respondents were the National Indigenous Australians Agency Staff Association, the Public Service Association, and the Finance Sector Union of Australia. The application was brought following a series of disputes regarding the implementation and interpretation of the Enterprise Agreement, which led to an impasse in the negotiations for its amendment or termination.

The primary legal issues before the court involved whether the prerequisites for termination of the Enterprise Agreement were met, including whether there was an impasse in good faith negotiations and whether the agreement was no longer appropriate due to changed circumstances. The court was also required to consider whether the application was made in accordance with the procedural requirements set out in the Fair Work Act. The court examined the evidence and submissions provided by both the applicant and the respondents to determine whether the termination application was justified.

The court found that the application for termination was well-founded, as there was a genuine impasse in the negotiations for the amendment of the Enterprise Agreement. The court noted that the parties had been unable to reach an agreement despite extensive negotiations, and the issues in dispute were significant enough to warrant termination. The court also concluded that the application was procedurally valid, as it was made in accordance with the requirements of the Fair Work Act. The court determined that the Enterprise Agreement was no longer appropriate due to the changed circumstances and the inability of the parties to reach an agreement, thereby granting the application for termination.

As a result of the court's decision, the National Indigenous Australians Agency Enterprise Agreement 2021-2024 was terminated. The final orders included the termination of the Enterprise Agreement, with effect from the date of the judgment, and the continuation of the existing terms and conditions of employment until a new agreement is negotiated or until otherwise determined by the Fair Work Commission. The court emphasised the importance of good faith negotiations and the need for the parties to reach a new agreement that reflects the current workplace environment and the needs of the employees.

Commonwealth of Australia represented by the National Indigenous Australians Agency

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established