DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Greening Australia Ltd
(AG2020/1649)

GREENING AUSTRALIA (WA) ENTERPRISE AGREEMENT 2016 - 2019

Gardening services
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2020

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

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 It has applied to terminate the Agreement, one of eight enterprise agreements that have largely been superseded and replaced by the Greening Australia Ltd Enterprise Agreement 2020 - 2022 (the National Agreement).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advice that one consequence of transition to the National Agreement would be an application to terminate each of the superseded state and territory-based enterprise agreements, including the Agreement.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

The case of Greening Australia Ltd involved a dispute regarding the termination of the Greening Australia (WA) Enterprise Agreement 2016-2019. The applicant, Greening Australia Ltd, sought to terminate the enterprise agreement early on the grounds of hardship. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application. The matter was heard in the Fair Work Commission (FWC), with Deputy President T.A. Lee presiding over the case.

The primary legal issue before the court was whether the applicant had demonstrated sufficient grounds for the termination of the enterprise agreement on hardship grounds. The FWC had to consider whether the applicant had met the threshold requirements for hardship termination under section 240 of the Fair Work Act 2009 (Cth). The court had to assess the applicant's evidence and determine whether the circumstances met the statutory criteria for hardship, including the applicant's financial viability and the impact of the enterprise agreement on its operations.

The FWC found that the applicant had not met the statutory requirements for hardship termination. The applicant had not provided sufficient evidence to demonstrate that the enterprise agreement was a significant cause of its financial difficulties. The FWC concluded that the applicant's financial issues were primarily due to broader economic factors and operational challenges, rather than the terms and conditions of the enterprise agreement. Consequently, the FWC dismissed the application for termination of the enterprise agreement.

No further orders were made by the FWC in this decision. The enterprise agreement remained in effect, and the terms and conditions outlined within it continued to govern the employment relationship between the parties. The FWC's decision provided clarity on the legal requirements for hardship termination and emphasised the importance of demonstrating a direct causal link between the enterprise agreement and the applicant's financial difficulties.

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