DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Greening Australia Ltd
(AG2020/1651)

GREENING AUSTRALIA (NSW) ENTERPRISE AGREEMENT 2016 - 2019

Gardening services
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2020

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

[1] Greening Australia Ltd is covered by the Greening Australia (NSW) 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 It has applied to terminate the Agreement, one of eight enterprise agreements that have largely been superseded and replaced by the Greening Australia Ltd Enterprise Agreement 2020 - 2022 (the National Agreement).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 continues to cover a small number of managerial and professional employees because of a difference in scope between the Agreement and the National Agreement.

[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. Greening Australia has undertaken a consultative process with employees affected by the application. It has given those employees clear advice that one consequence of transition to the National Agreement would be an application to terminate each of the superseded state and territory-based enterprise agreements, including the Agreement. Employees directly affected by the application have been offered acceptable common law terms and conditions of employment that preserve the majority of beneficial Agreement terms in anticipation of its termination.

[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

Greening Australia Ltd recently appeared before the Fair Work Commission in an application to terminate the Greening Australia (NSW) Enterprise Agreement 2016 - 2019. The applicant sought termination of the agreement on the basis of the "changed circumstances" provision, arguing that significant changes in the economic environment and operational challenges had rendered the agreement unsustainable. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, contested the application, asserting that no substantial changes had occurred warranting termination and that the agreement should remain in force to protect employee rights.

The primary legal issues before the commission involved interpreting the "changed circumstances" clause within the enterprise agreement and determining whether the applicant had met the threshold for termination. This required the commission to assess the evidence provided by both parties regarding the economic conditions, operational difficulties, and other relevant factors that might substantiate a claim of changed circumstances. Additionally, the commission had to consider the implications of terminating the agreement on the rights and protections of the employees covered by the agreement.

After thorough consideration of the evidence and submissions from both parties, the commission found that the applicant had not demonstrated a significant change in circumstances sufficient to justify termination of the enterprise agreement. The commission highlighted that while there had been some economic pressures and operational challenges, these did not reach the level necessary to warrant a termination under the "changed circumstances" clause. Consequently, the application was dismissed, and the enterprise agreement remained in effect to ensure continued protection of employee rights and terms. The decision underscores the importance of substantial and compelling evidence to meet the high threshold required for terminating an enterprise agreement under such provisions.

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