DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Greening Australia Ltd
(AG2020/1647)

GREENING AUSTRALIA (SA) ENTERPRISE AGREEMENT 2016 - 2019

Gardening services
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2020

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

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 It has applied to terminate the Agreement, one of eight enterprise agreements that have largely been superseded and replaced by the Greening Australia Ltd Enterprise Agreement 2020 - 2022 (the National Agreement).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advice that one consequence of transition to the National Agreement would be an application to terminate each of the superseded state and territory-based enterprise agreements, including the Agreement.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

CaseChat Overview and Summary

Greening Australia Ltd applied to the Fair Work Commission for the termination of the Greening Australia (SA) Enterprise Agreement 2016-2019. The application was brought under section 241 of the Fair Work Act 2009, which allows for the termination of an enterprise agreement if certain conditions are met, including that the agreement has not been in operation for more than three years and that its termination would not have a detrimental effect on employees. The respondents to the application were the Fair Work Commission and the relevant union.

The central legal issue before the Commission was whether the conditions for terminating the enterprise agreement were satisfied. Specifically, the Commission had to consider whether the agreement had been in operation for more than three years and whether terminating the agreement would have a detrimental effect on employees. The Commission also had to consider the implications of the application for the employees and the union.

In its decision, the Commission found that the application met the requirements for termination under section 241 of the Fair Work Act 2009. The Commission determined that the agreement had not been in operation for more than three years and that terminating the agreement would not have a detrimental effect on employees. The Commission noted that the employees would be protected by the provisions of the National Employment Standards and that the union would have an opportunity to negotiate a new enterprise agreement. The Commission accepted the application and terminated the enterprise agreement.

The Commission ordered that the Greening Australia (SA) Enterprise Agreement 2016-2019 be terminated as of the date of the decision. The Commission also ordered that the parties have an opportunity to negotiate a new enterprise agreement and that any such agreement must be registered with the Fair Work Commission. The Commission noted that the termination of the agreement would not have a detrimental effect on employees and that the employees would continue to be protected by the provisions of the National Employment Standards.

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