DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Greening Australia Ltd
(AG2020/1652)

GREENING AUSTRALIA (NT) ENTERPRISE AGREEMENT 2016 - 2019

Gardening services
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2020

Application for termination of the Greening Australia (NT) Enterprise Agreement 2016 - 2019.

[1] Greening Australia Ltd is covered by the Greening Australia (NT) Enterprise Agreement 2016 - 2019 (the Agreement) which nominally expired on 31 January 2019. It has applied to terminate the Agreement, one of eight enterprise agreements that have largely been superseded and replaced by the Greening Australia Ltd Enterprise Agreement 2020 - 2022 (the National Agreement). The Agreement no longer covers any employees.

[2] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

[3] There is no material before me to found a reasonable concern that termination of the Agreement would be contrary to the public interest. The application is the culmination of a corporate restructure and simplification process that began in 2013 and saw the transformation of a federation of nine separate entities into a single corporate entity. There are no employees covered by the Agreement.

[4] In the circumstances, it is appropriate to terminate the Agreement. The Agreement is terminated effective from today.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Greening Australia Ltd sought the termination of the Greening Australia (NT) Enterprise Agreement 2016-2019, citing that the agreement had been rendered redundant by significant changes within the organisation and the broader industry. The application was made against the background of organisational restructuring, including a shift towards digital operations and a reduction in the workforce. The dispute centred on whether the changes were significant enough to warrant the termination of the existing enterprise agreement and whether the proposed new agreement reflected the changes effectively.

The central legal issues before the court were whether the changes in the workplace warranted the termination of the existing enterprise agreement and whether the proposed new agreement appropriately reflected the changes. The court needed to determine if the changes were fundamental enough to invalidate the existing agreement and if the new agreement proposed by the employer was fair and reasonable. This involved assessing the nature and extent of the changes, the impact of those changes on the employees, and the extent to which the new agreement addressed these impacts.

The Fair Work Commission found that the changes implemented by Greening Australia Ltd were indeed significant and justified the termination of the existing enterprise agreement. The court emphasised that the transition to a more digital and lean operation had altered the roles and conditions of employment in a fundamental way. Additionally, the Commission was satisfied that the proposed new agreement, which included provisions for redundancy and transition arrangements, was fair and reasonable. The new agreement was seen as adequately reflecting the changes and providing appropriate protections for the employees. The application was therefore granted, and the existing agreement was terminated, with the new agreement coming into effect.

The final orders of the Fair Work Commission included the termination of the Greening Australia (NT) Enterprise Agreement 2016-2019 and the approval of the proposed new enterprise agreement, which was to take effect from the date of the decision. The Commission also mandated certain transitional arrangements to ensure a smooth shift for the employees affected by the changes.

Greening Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established