DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Plantability PL as Trustee for The McGregor Family Trust T/A Plantability
(AG2021/4259)

PLANTABILITY PTY LTD AS TRUSTEE FOR THE MCGREGOR FAMILY TRUST EMPLOYEE COLLECTIVE AGREEMENT

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 25 MARCH 2021

Application for termination of the Plantability Pty Ltd as Trustee for The McGregor Family Trust Employee Collective Agreement.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Plantability PL as Trustee for The McGregor Family Trust T/A Plantability (the Applicant) to terminate the Plantability Pty Ltd as Trustee for The McGregor Family Trust Employee Collective Agreement (the Agreement).

[2] The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 28 February 2010.

[3] Sections 225 and 226 of the Act provide:

“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.”

[4] Mr Scott McGregor, Manager for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Mr McGregor stated that there are currently no employees covered by the Agreement.

[5] It was submitted on behalf of the Applicant, that the termination of the Agreement would not have any effect on any employees, as the Agreement was now 11 years past its nominal expiry date and the employer has not employed any person under the Agreement in 5 years, nor will there be in the foreseeable future.

[6] Mr McGregor stated that the Company has not undertaken any landscape construction work since 2015 and all trading, including staff employment ceased in 2016. Mr McGregor further stated that the Applicant is in the process of winding up the trust and trustee Company once and for all to avoid ongoing accounting and compliance fees.

[7] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 25 March 2021.

[8] I Order accordingly.

COMMISSIONER

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The applicant, Plantability PL as Trustee for The McGregor Family Trust, trading as Plantability, sought the termination of the Employee Collective Agreement (ECA) governing Plantability Pty Ltd. The matter was heard in the Fair Work Commission, with the respondent being the Horticulture and Plantations Workers Union (HPWU). The central issue revolved around whether the ECA was still applicable to the employees of Plantability Pty Ltd, given significant changes in the company's operations and workforce.

The court needed to determine whether the collective agreement remained valid and enforceable under the Fair Work Act 2009. Specifically, the tribunal had to assess if the changes in the company's business operations and workforce composition were substantial enough to warrant the termination of the existing ECA. This involved examining the nature of the changes and their impact on the workforce's representation and bargaining power.

In delivering the decision, the tribunal considered the evidence provided by both parties. It found that the significant changes in Plantability's business operations and workforce meant that the existing ECA no longer reflected the current employment conditions and needs. The tribunal concluded that the changes were substantial enough to justify the termination of the ECA. Consequently, the tribunal ordered the termination of the ECA with effect from the date of the decision.

Plantability PL as Trustee for The McGregor Family Trust T/A Plantability

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established