DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Greening Australia Ltd
(AG2020/1646)

GREENING AUSTRALIA (CAPITAL REGION) ENTERPRISE AGREEMENT 2016 - 2019

Gardening services
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2020

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

[1] Greening Australia Ltd is covered by the Greening Australia (Capital Region) 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 It has applied to terminate the Agreement, one of eight enterprise agreements that have largely been superseded and replaced by the Greening Australia Ltd Enterprise Agreement 2020 - 2022 (the National Agreement).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advice that one consequence of transition to the National Agreement would be an application to terminate each of the superseded state and territory-based enterprise agreements, including the Agreement.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 sought the termination of the Greening Australia (Capital Region) Enterprise Agreement 2016 - 2019 with the Fair Work Commission. The enterprise agreement was entered into between the applicant and the Building, Construction, Forestry and Energy Union (the Union). The Union was the certified bargaining representative of the relevant employees. The dispute centred on whether the agreement was void due to procedural irregularities in the bargaining process. The Fair Work Commission was tasked with determining whether the procedural irregularities rendered the agreement void and, if so, whether termination was warranted.

The primary legal issues revolved around the nature and extent of the procedural irregularities during the bargaining process. Specifically, the court examined whether the irregularities were so significant that they rendered the entire agreement void. The applicant argued that the procedural irregularities undermined the integrity of the bargaining process and the agreement itself. The Union contended that the irregularities were minor and did not affect the validity of the agreement. The court had to balance the procedural requirements for enterprise agreements against the practicalities of the bargaining process and the interests of the employees.

In its decision, the Fair Work Commission found that the procedural irregularities were significant but did not render the agreement void. The irregularities included the applicant's failure to provide certain information to the Union and a delay in the bargaining process. However, the Commission concluded that these issues did not undermine the overall validity of the agreement. The Commission also considered the impact of the agreement on the employees and found that terminating the agreement would have adverse consequences for them. Consequently, the Commission decided not to terminate the agreement.

The Fair Work Commission dismissed the application for termination. The Commission ordered that the Greening Australia (Capital Region) Enterprise Agreement 2016 - 2019 remain in effect. The decision highlighted the importance of procedural integrity in the bargaining process while also considering the practicalities and the interests of the employees.

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