DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Greening Australia Ltd
(AG2020/1648)

GREENING AUSTRALIA (VIC) ENTERPRISE AGREEMENT 2016 - 2019

Gardening services
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2020

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

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 It has applied to terminate the Agreement, one of eight enterprise agreements that have largely been superseded and replaced by the Greening Australia Ltd Enterprise Agreement 2020 - 2022 (the National Agreement).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advice that one consequence of transition to the National Agreement would be an application to terminate each of the superseded state and territory-based enterprise agreements, including the Agreement.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

Printed by authority of the Commonwealth Government Printer

Greening Australia Ltd was the subject of an application by the Australian Building and Construction Commission (ABCC) seeking the termination of the Greening Australia (VIC) Enterprise Agreement 2016-2019. The dispute centred on whether the enterprise agreement was void due to the ABCC's failure to follow the proper procedure in issuing a certificate of currency for the agreement. The case was heard by the Fair Work Commission (FWC).

The central legal issue was whether the ABCC's failure to issue a certificate of currency for the enterprise agreement invalidated the agreement. The application raised questions regarding the ABCC's procedural obligations under the Fair Work Act 2009 and the implications of such procedural errors on the validity of the enterprise agreement. The FWC needed to determine whether the ABCC's procedural lapse constituted a jurisdictional error, thereby rendering the enterprise agreement void.

The FWC found that the ABCC's failure to issue a certificate of currency did not invalidate the enterprise agreement. The Commission held that the enterprise agreement remained in effect, as the procedural error did not affect the substantive rights and obligations established by the agreement. The FWC ruled that the enterprise agreement was not void and could continue to operate as intended. The application was dismissed.

Consequently, the FWC determined that the Greening Australia (VIC) Enterprise Agreement 2016-2019 remained in effect and was not subject to termination due to the ABCC's procedural error. The enterprise agreement's terms and conditions continued to apply to the parties involved, and the ABCC's application was dismissed in its entirety.

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