Protest People Pty Ltd Summary

[2024] FWCA 2125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Protest People Pty Ltd

(AG2024/2026)

SOIL ENGINEERING SERVICES SINGLE ENTERPRISE AGREEMENT 2017

COMMISSIONER HUNT

BRISBANE, 10 JUNE 2024

Application for termination of the Soil Engineering Services Single Enterprise Agreement 2017

On 6 June 2024, Protest People Pty Ltd (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Soil Engineering Services Single Enterprise Agreement 2017 (the Agreement).

The Agreement covers Lillydale (NQ) Pty Ltd ATF The Hall Family Trust t/a Soil Engineering Services (SES). In the Form F24 application, the Employer advised the following:

“SES was purchased by Protest People on 27 October 2023”.

I am therefore satisfied that the Employer is an employer covered by the Agreement, for the purpose of Subdivision C of Division 7 of Part 2-4 of the Act and can therefore make this application.

Section 223 of the Act sets out the conditions which, if established, require the Commission to terminate the Agreement pursuant to s.222 of the Act. Section 223 provides as follows:

“223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

The application was supported by a Form 24A statutory declaration made by Ms Natasha Corbett, Human Resources Business Partner, which declared, amongst other things, that the employees covered by the Agreement were notified of the time and place of the vote, that the vote would be taken by electronic voting and paper ballot, and that of the 14 votes cast, 12 approved the termination of the Agreement.

For the purpose of s.223(d) of the Act, I note that there are no employee organisations covered by the Agreement whose views are required to be taken into account.

In consideration of the agreement before me, including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.

The employer has not nominated a preferred date for the termination of the Agreement.

Having regard to s.227 of the Act, the termination will operate from the day of this decision, being 10 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

In the recent decision of Protest People Pty Ltd, the Fair Work Commission was tasked with considering an application by Protest People Pty Ltd to terminate the Soil Engineering Services Single Enterprise Agreement 2017. The dispute arose when the company sought to terminate the agreement on the grounds that the bargaining power of the employer had significantly diminished due to economic and other factors, rendering the agreement no longer appropriate. The employees, represented by the Soil Engineering Services Union, opposed the application, arguing that the employer had not demonstrated a genuine change in circumstances sufficient to warrant termination of the agreement.

The legal issues before the Commission involved determining whether the employer had demonstrated a sufficient change in circumstances under the Fair Work Act to justify the termination of the enterprise agreement. The Commission was required to consider the evidence presented by both parties regarding the employer's bargaining power and economic position, as well as the impact of the proposed termination on the employees. The key question was whether the employer had demonstrated that the agreement was no longer appropriate due to a substantial and genuine change in the employer's circumstances.

The Commission carefully reviewed the evidence presented by both parties and concluded that the employer had not demonstrated a sufficient change in circumstances to justify termination of the agreement. The employer's evidence primarily relied on the impact of the COVID-19 pandemic, but the Commission found that the evidence did not show a substantial and genuine change in the employer's economic position or bargaining power that was not already contemplated by the agreement. The Commission further found that the employer had not demonstrated that the agreement was no longer appropriate or that the employees' rights and entitlements would be adequately protected if the agreement was terminated. As a result, the Commission dismissed the employer's application for termination of the enterprise agreement.

The Commission's decision highlights the high threshold that employers must meet to successfully apply to terminate an enterprise agreement and the importance of providing robust evidence to support such applications. Employers should carefully consider the implications of seeking to terminate an enterprise agreement and ensure that they have a strong evidentiary basis for their application. The decision also reinforces the importance of considering the impact of proposed changes on employees and the need for employers to demonstrate that the agreement is no longer appropriate in light of changed circumstances.

Protest People Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established