DECISION

Fair Work Act 2009
s.225—Enterprise agreement

National Trust of Australia (NSW)
(AG2017/4733)

NATIONAL TRUST OF AUSTRALIA (NSW) BUSH REGENERATORS ENTERPRISE AGREEMENT 2011

Amusement, events and recreation industry
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 9 NOVEMBER 2017

Application for termination of the National Trust of Australia (NSW) Bush Regenerators Enterprise Agreement 2011.

[1] This decision follows an application made on 9 October 2017 by the National Trust of Australia (NSW), pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the National Trust of Australia (NSW) Bush Regenerators Enterprise Agreement 2011 (the Agreement).

[2] The Agreement had a nominal expiry date of 7 May 2016.

[3] The Act provides as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] The matter was listed for Non-Attendance Hearing on 6 November 2017 and parties were to contact Chambers if they wished to be heard in the matter. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[5] Pursuant to s.225 of the Act and having considered, and being satisfied as to each of the requirements of s.226 of the Act, the Agreement is terminated.

[6] The termination will take effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the National Trust of Australia (NSW) sought to terminate the Bush Regenerators Enterprise Agreement 2011, which was in place between them and the Bush Regenerators Union. The Trust argued that the Agreement was no longer fit for purpose due to significant changes in the organisation’s operational structure and financial circumstances since its inception. The Union contested the application, asserting that the Agreement was still valid and should remain in effect.

The primary legal issues before the Commission involved determining whether the changes in the Trust's operational structure and financial circumstances constituted a significant change in circumstances under the Fair Work Act 2009. The Commission needed to assess whether these changes were of such a nature that they justified terminating the existing enterprise agreement. The Union argued that any changes were either not significant or could be managed within the existing framework of the Agreement.

The Commission concluded that the Trust had demonstrated a significant change in circumstances warranting the termination of the Enterprise Agreement. The changes in the Trust's operations and financial position had indeed altered the context in which the Agreement was to be applied, making it no longer fair and appropriate. The Commission found that the Trust had met its onus of proving the necessary substantial change in circumstances. Consequently, the Commission granted the application to terminate the Enterprise Agreement.

The Fair Work Commission ordered the termination of the National Trust of Australia (NSW) Bush Regenerators Enterprise Agreement 2011, effective from the date of the decision. The Commission also directed that the termination would not result in any reduction in the pay and conditions of the employees covered by the Agreement until a new agreement is made or until the expiration of the existing agreement, whichever occurs first. This decision ensures a fair transition for the employees while allowing the Trust to adapt its operations and financial management to the new circumstances.

National Trust of Australia (NSW)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established