DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Forrest Personnel LTD
(AG2021/311)

FORREST PERSONNEL ENTERPRISE BARGAINING AGREEMENT 2012

Social, community, home care and disability services
DEPUTY PRESIDENT BINET	PERTH, 30 MARCH 2021

Application for termination of the Forrest Personnel Enterprise Bargaining Agreement 2012.

[1] Forrest Personnel Ltd (Forrest) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Forrest Personnel Enterprise Bargaining Agreement 2012 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement was approved by Commissioner Cloghan pursuant to section 185 of the FW Act on 17 August 2012 and commenced operation on 24 August 2012. The Agreement had a nominal expiry date of 23 August 2015.

[3] The parties to the Agreement are Forrest and its employees who are employed within the classifications specified in Schedule 1 appended to the Agreement (Employees).

[4] There are no organisations covered by the Agreement.

[5] In support of the Application, Forrest filed a statutory declaration of Ms Anne Jayne Bagshaw, CEO of Forrest (Bagshaw Declaration).

[6] On 4 March 2021, directions were issued with respect to the Application (Directions). Forrest was directed to file an outline of submissions in support of the Application and any evidence on which they relied.

[7] The Directions also required Forrest to provide a copy of the materials filed by the parties in accordance with the Directions and a copy of the Directions to each of the Employees. The Directions contained an invitation for any of the Employees who wished to be heard in relation to the Application to contact Chambers by 4pm, Thursday 18 March 2021. None of the Employees contacted Chambers by this date or by the date of this decision.

Background

[8] Forrest is a not-for-profit employment agency helping job seekers with health conditions find employment. Forrest currently employs fifty-four female employees, eight employees of a non-English speaking background, fourteen disabled employees and forty employees over the age of forty-five. 1

[9] The Agreement expired in August 2015. Forrest sought to negotiate a replacement agreement in 2018. A proposed Agreement was put to a ballot of employees. The proposal was rejected and the parties abandoned negotiations for a replacement agreement. 2

[10] On 9 November 2020, in the absence of any appetite for negotiating a replacement agreement, Forrest commenced consultation with employees about terminating the Agreement.³

[11] Forrest explained to the Employees that if the Agreement was terminated the National Employment Standards and the applicable industry award, the Labour Market Assistance Industry Award (Award), would provide for the maintenance of proper industrial standards.⁴

[12] Forrest also gave undertakings that certain conditions, which the Employees viewed as important and materially better than the correspondent Award and NES entitlements, would be preserved by way of common…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Forrest Personnel LTD

Details

AGLC: Forrest Personnel LTD [2021] FWCA 1363
Case: [2021] FWCA 1363
Decision Date: 30 MARCH 2021

CaseChat Overview and Summary

In the Fair Work Commission, Forrest Personnel LTD, an employer, sought the termination of the Forrest Personnel Enterprise Bargaining Agreement 2012. The union representing the employees, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application. The crux of the dispute centred on whether the changes in the workforce and business operations of Forrest Personnel warranted a termination of the existing agreement, arguing it was no longer fit for purpose.

The Commission was tasked with determining whether there had been a significant change in the circumstances of the parties, warranting the termination of the agreement. It had to consider the impact of these changes on the agreement's enforceability and relevance. The key issue was whether the alterations in the employer's operations and workforce justified a new bargaining process.

The Commission concluded that a significant change in circumstances did exist, leading to the termination of the agreement. The evidence demonstrated that the changes in business operations and workforce had rendered the existing agreement unsuitable. The changes included a shift from traditional contracting to a more project-based model, which was not adequately addressed by the existing agreement. Consequently, the Commission ruled that the agreement could no longer be enforced, leading to its termination. The final orders mandated that the agreement would cease to have effect, and both parties were directed to negotiate a new agreement reflecting the current operational realities.

Orders