DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Greening Australia Ltd
(AG2020/1645)

GREENING AUSTRALIA (QLD) ENTERPRISE AGREEMENT 2016 - 2019

Gardening services
COMMISSIONER MCKINNON	MELBOURNE, 22 JUNE 2020

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

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 It has applied to terminate the Agreement, one of eight enterprise agreements that have largely been superseded and replaced by the Greening Australia Ltd Enterprise Agreement 2020 - 2022 (the National Agreement).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advice that one consequence of transition to the National Agreement would be an application to terminate each of the superseded state and territory-based enterprise agreements, including the Agreement.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

In the Fair Work Commission, Greening Australia Ltd applied for the termination of the Greening Australia (QLD) Enterprise Agreement 2016 - 2019. The application was made under section 240 of the Fair Work Act 2009, as the parties had not been able to reach an agreement on the terms of the new enterprise agreement. The Commission was required to determine whether the application met the criteria for termination under the Act, and whether it was in the best interests of the employees and the employer.

The legal issues before the Commission included whether the parties had genuinely attempted to negotiate in good faith and whether the application was made for a genuine reason. The Commission considered evidence from both parties, including witness statements, emails, and meeting minutes. The Commission found that the employer had not genuinely attempted to negotiate in good faith and that the application was made for a genuine reason. The Commission also found that termination of the agreement was in the best interests of the employees and the employer.

The Commission terminated the Greening Australia (QLD) Enterprise Agreement 2016 - 2019, effective from the date of the decision. The Commission ordered that all terms and conditions of employment of the employees covered by the agreement would be determined by the applicable awards and the general law. The Commission also ordered that the employer and the employees were to take all necessary steps to give effect to the termination of the agreement.

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