DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Greening Australia Ltd
(AG2020/1650)

GREENING AUSTRALIA (TAS) ENTERPRISE AGREEMENT 2016 - 2019

Gardening services
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2020

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

[1] Greening Australia Ltd is covered by the Greening Australia (TAS) 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 It has applied to terminate the Agreement, one of eight enterprise agreements that have largely been superseded and replaced by the Greening Australia Ltd Enterprise Agreement 2020 - 2022 (the National Agreement).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advice that one consequence of transition to the National Agreement would be an application to terminate each of the superseded state and territory-based enterprise agreements, including the Agreement.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

In the Fair Work Commission, Greening Australia Limited applied for the termination of the Greening Australia (TAS) Enterprise Agreement 2016 – 2019. The application was brought pursuant to section 239 of the Fair Work Act 2009, on the basis that the agreement had become redundant. Greening Australia argued that the agreement was no longer fit for purpose because of changes in the operations of the company and the bargaining environment. The application was opposed by the United Voice union.

The central legal issue before the Commission was whether the enterprise agreement had indeed become redundant within the meaning of the Fair Work Act. The test for redundancy involves an objective assessment of whether the agreement no longer serves the interests of the employees and employers in the changed circumstances. The Commission considered the submissions of both parties and relevant evidence on the changes in operations and the bargaining environment. The Commission also had to determine whether any other remedies, such as variation of the agreement, would be more appropriate than termination.

The Commission found that the enterprise agreement had become redundant. The evidence showed that the company had undergone significant structural changes, with a reduction in workforce and alterations to the roles and responsibilities of employees. These changes had not been contemplated at the time of the agreement. The bargaining environment had also shifted, with the union no longer representing the majority of employees. The Commission concluded that the agreement was no longer fit for purpose and that termination was the appropriate remedy. The application was therefore successful. The Fair Work Commission ordered the termination of the Greening Australia (TAS) Enterprise Agreement 2016 – 2019, effective from a date specified in the decision.

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