Greening Australia LTD

[2025] FWCA 1862

[2025] FWCA 1862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Greening Australia LTD

(AG2025/1477)

GREENING AUSTRALIA LTD ENTERPRISE AGREEMENT 2020 - 2022

Gardening services
COMMISSIONER CONNOLLY	MELBOURNE, 3 JUNE 2025

Application for termination of the Greening Australia LTD Enterprise Agreement 2020 – 2022

1. On 15 May 2025, Greening Australia LTD made an application for the termination of the Greening Australia LTD Enterprise Agreement 2020-2022 (the Agreement), an enterprise agreement that had passed its nominal expiry date, pursuant to s.222 of the Fair Work Act 2009 (the Act).

Relevant Legislation

1. Sections 222 and 223 of the Act are relevant to this application and are as follows:

“222 Application for FWA approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to FWA for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances FWA considers it fair to extend that period—within such further period as FWA allows.

223 When FWA 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, FWA must approve the termination if:

(a) FWA 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) FWA 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) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA 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.”

Relevant Background

1. The Applicant’s application was accompanied by a F24A declaration by Martin Elliott, Executive Director, People & Culture and supporting documentation. The declaration set out the following:

·   The Agreement nominal expiry date was on 29 May 2022.

·   Between 24 March 2025 and 28 April 2025, Greening engaged in its first access period to terminate the Agreement. During this time, consultation took place regarding the proposed termination. Employees were given the opportunity to ask questions concerning the Agreement, modern awards and contracts of employment, which were answered by Greening. Voting took place and the termination was agreed to. After voting had taken place, Greening realised that a group of employees entitled to vote on the termination had been inadvertently excluded. Greening commenced in further consultation and a new access period before engaging in a new ballot.

·   On 29 April 2025, an email was sent to all employees providing copies or links to the Agreement and the Awards, an explanatory document and a comparison document showing the differences between the Agreement and the Awards. Information on the voting process was also attached to the email. These documents were attached to the Application.

·   Between 16 April 2025 and 6 May 2025, consultation meetings were held for employees to ask any questions and/or raise any concerns regarding the termination. During these consultation meetings, the voting process was explained to employees.

·   On 22 April 2025, employees who were unable to attend the consultation meetings were provided with a recording which provided the same explanation of the termination of the agreement given at the meetings.

·   On 7 May 2025, voting on the termination of the Agreement commenced.

·   On 9 May 2025, the termination was agreed to. Of the 31 employees covered by the Agreement, 24 cast a valid vote and 18 voted to approve the termination.

Consideration – s.222 of the Act

Is the Applicant a person covered by the Agreement for the purposes of s.222(1)?

1. By virtue of clause 1 of the Agreement, being the coverage and parties bound clause, I am satisfied the Applicant is covered by the Agreement and has standing to make the application.

Is the Application accompanied by any declarations that are required by the procedural rules to accompany the Application as required by s.222(2) of the Act?

1. The Application is accompanied by a Form 24A – declaration in support of termination of an enterprise agreement. Therefore, I am satisfied that the requirements of s.222(2) of the Act have been met.

Has the Application been made within the required timeframe per s.222(3)(a)?

1. Section 222(3) of the Act sets out the timeframe within which an application must be made, being 14 days after the termination is agreed to or, if the Commission determines in all the circumstances it would be fair to extend that period, such period as the Commission allows.

1. It is declared in the Form F24A that the termination was agreed to on 9 May 2025.

1. The Application to the Commission for termination of the agreement was made on 15 May 2025 and I am satisfied the requirements of s.222(3) have been met.

Consideration – s.223 of the Act

1. I must approve the Application if I am satisfied that the requirements set out in s.223 of the Act are met.

1. Section 223(a) requires me to be satisfied that each employer covered by the Agreement complied with s.220(2) in relation to the Agreement. I consider this requirement below.

Did the Applicant take all reasonable steps to notify the employees of the time and place of the vote and voting method before requesting the employees vote to approve the termination as required by s.220(2)(a) of the Act?

1. It is declared in the Form F24A that on 29 April 2025 all staff were informed a secret online ballot of all employees covered by the Agreement would commence on 7 May 2025, and close on 9 May 2025.

1. Having considered the materials before me, I am satisfied that before requesting employees vote to approve the proposed termination of the Agreement, the employer took all reasonable steps to notify employees of the time, place and voting method that would be used as required by s.220(2)(a) of the Act.

Did the Applicant give the employees as reasonable opportunity to decide whether they want to approve to the proposed termination as required by s.220(2)(b) of the Act?

1. The Application impacts 31 employees of Applicant. It is declared in the Form F24A that all employees were informed of their option to consider approving termination of the Agreement at staff meetings between 16 April and 6 May 2025.

1. I have considered the material before me, and I am satisfied that in the circumstances the Applicant has given employees a reasonable opportunity to decide whether they want to approve the proposed termination.

Was the termination of the Agreement agreed in accordance with whichever of s.221(1) or (2) applies?

1. Section 223(b) requires me to be satisfied that the termination was agreed in accordance with whichever of s.221(1) or (2) applies. The Agreement is a single enterprise agreement and therefore s.221(1) applies.

1. It is declared in the Form F24A that there were 31 employees covered by the Agreement, 24 of whom cast a valid vote and 18 voted to approve the termination of the Agreement.

1. Having considered the material before me, I am satisfied that a majority of the employees who cast a valid vote approved the termination and that the requirements of s.221(1) have been met.

Absence of other reasonable grounds for believing that the employees have not agreed to the termination – s.223(c)

1. On the material before me as set out above, I am satisfied that there are no other reasonable grounds for believing that employees have not agreed to the termination.

Consideration of the views of the employee organisation or employee organisations (if any) covered by the Agreement – s.223(d)

1. There are no employee organisations covered by the Agreement.

Conclusion

1. Based on the material before the Commission, I am satisfied that the requirements of ss.222 and 223 of the Act have been met.

1. No submissions have been filed in opposition.

1. I am satisfied that it is appropriate to terminate the Agreement.

1. Section 224 of the Act provides that if a termination of an enterprise agreement is approved under s.223, the termination operates from the day specified in the decision to approve the termination.

1. In accordance with s.224, the termination will come into effect from 3 June 2025.

COMMISSIONER

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