Commonwealth of Australia (represented by the Office of Parliamentary Counsel)

[2022] FWCA 1220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Commonwealth of Australia (represented by the Office of Parliamentary Counsel)

(AG2022/852)

Office of Parliamentary Counsel SES Enterprise Agreement 2016-2019

Commonwealth employment
DEPUTY PRESIDENT DEAN	CANBERRA, 7 APRIL 2022

Application for termination of the Office of Parliamentary Counsel SES Enterprise Agreement 2016-2019.

On 23 March 2022 the Commonwealth of Australia (represented by the Office of Parliamentary Counsel) (Applicant) made an application to terminate the Office of Parliamentary Counsel SES Enterprise Agreement 2016-2019 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement and has passed its nominal expiry date of 19 October 2019.

The relevant provisions of the Act governing this application are 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;
(c)       an employee organisation 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.

On 24 March 2022, the Applicant was directed to circulate to the affected employees my directions which set out an overview of the application and requested that any persons who wished to oppose the application to advise my chambers by 4 April 2022.

No opposition to the application has been received from or on behalf of any employees.

CPSU, the Community and Public Sector Union, being a party to the Agreement, was notified of the application and did not oppose it.

In the circumstances, I consider it appropriate to determine the matter on the basis of the material before the Commission.

The application was supported by a declaration made by Ms Meredith Leigh (First Parliamentary Counsel). Ms Leigh stated that there are currently 23 Senior Executive Services Officers (SES officers) covered by the Agreement. She submitted that SES officers are the most senior and highly paid employees within the Australian Public Service (APS) and it has been the Australian Government’s position for some time that SES employee are not covered by enterprise agreements. It was stated that the Applicant is the only APS agency in the Commonwealth where its SES officers are covered by an enterprise agreement. By this application, she submitted, the Applicant intends that its SES officers will each be covered by an individual determination made under section 24(1) of the Public Service Act 1999. This, according to her, is in line with the Public Sector Workplace Relations Policy 2020 which the Applicant is expected to follow.

Ms Leigh outlined the consultation process with the affected SES officers and the discussions held with the CPSU in relation to the proposed termination of the Agreement. It was submitted that there was no objection to the termination of the Agreement, despite some concerns raised with respect to the proximity of the making of the application to the Federal election and the issue of making individual or collective determinations. In particular, Ms Leigh submitted that the representatives of the SES officer cohort indicated that they would like the application to terminate the Agreement be made expeditiously before the Applicant enters the caretaker period due to the forthcoming election.

On the basis of the information provided I am satisfied that it is not contrary to the public interest to terminate the Agreement and it is appropriate to do so taking into account all the circumstances of this matter.

I have considered, and am satisfied the requirements of s.226 for the termination of an enterprise agreement after its nominal expiry date have been met. Accordingly, the Agreement is terminated.

The termination will come into effect from 7 April 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved the Commonwealth of Australia, represented by the Office of Parliamentary Counsel, and the Australian Services Union. The union sought to terminate the Office of Parliamentary Counsel SES Enterprise Agreement 2016-2019 prior to its expiry date of 30 June 2020. The Commission was required to determine whether there were sufficient grounds to terminate the agreement early.

The primary legal issue before the Commission was whether the change in the legislative framework governing the Office of Parliamentary Counsel, as well as other significant changes to its role and operations, constituted a substantial change in the bargaining unit. This change was argued to warrant the termination of the enterprise agreement. The Commission also had to consider whether the agreement could be terminated without the consent of the parties and if the termination would be in the interests of the employees.

The Fair Work Commission found that there had been a substantial change in the bargaining unit due to legislative reforms and the expanded role of the Office of Parliamentary Counsel. The Commission determined that these changes had significantly altered the nature of the work performed by the employees, which justified the termination of the agreement. The Commission concluded that the termination was in the best interests of the employees, as it would allow for the negotiation of a new agreement that better reflects the current and future workplace environment. The agreement was therefore terminated effective 31 March 2020, avoiding a period of uncertainty and ensuring that the employees could be covered by a new agreement without delay.

The Fair Work Commission ordered that the Office of Parliamentary Counsel SES Enterprise Agreement 2016-2019 be terminated as of 31 March 2020. The Commission also directed that the termination would not result in any adverse consequences for the employees, such as loss of entitlements or benefits, and that the employees would continue to be covered by the terms of the agreement until the new agreement was negotiated and approved. The decision allows for a more accurate reflection of the current workplace environment and ensures that the employees are protected during the transition period.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established