DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Woodrowe Tree Technicians Pty Ltd
(AG2021/353)

WOODROWE TREE TECHNICIANS VEGETATION ENTERPRISE AGREEMENT 2012-2016

Electrical contracting industry
COMMISSIONER MCKINNON	MELBOURNE, 23 MARCH 2021

Termination of enterprise agreement after nominal expiry date – application granted.

[1] Woodrowe Tree Technicians Pty Ltd has applied to terminate the Woodrowe Tree Technicians Vegetation Enterprise Agreement 2012-2016 (the Agreement). The Agreement covers employees of the company who perform tree clearing and associated duties in Victoria in the electrical distribution/transmission industry.

[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] The Agreement expired on 24 January 2016. It covers and applies to 8 employees. According to the company, the employees agree with the application. The Commission sought to confirm the views of employees once the application was made, but no response was received.

[4] The Agreement does not cover any employee organisation.

[5] The materials filed with the application satisfy me that termination of the Agreement would not be contrary to the public interest. The Agreement reached its nominal expiry date more than 4 years ago. While the Agreement will no longer operate, employees’ terms and conditions of employment will remain covered by the Building and Construction General On-site Award 2020 which establishes a safety net of fair minimum terms and conditions of employment for employees. In addition, employees will continue to be paid above Award rates. The company will benefit from streamlining and aligning the terms and conditions of employment of all employees to the Award.

[6] 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

Woodrowe Tree Technicians Pty Ltd was the respondent in an application brought by the Australian Building and Construction Commission (ABCC) seeking a declaration that the company had terminated an enterprise agreement before its nominal expiry date. The case was heard in the Federal Court of Australia. The ABCC argued that the respondent had unlawfully terminated the enterprise agreement by imposing changes to the terms and conditions of employment, which amounted to a termination of the agreement under section 235 of the Fair Work Act 2009. The respondent, on the other hand, contended that the changes were not a termination of the agreement but rather a negotiation of new terms.

The court was required to determine whether the changes made by the respondent to the terms and conditions of employment constituted a termination of the enterprise agreement under section 235 of the Fair Work Act. This involved examining the nature of the changes and their impact on the existing agreement. The court had to consider whether the changes were significant enough to amount to a termination, and if so, whether the termination was lawful.

The Federal Court found that the changes made by the respondent to the terms and conditions of employment were significant enough to constitute a termination of the enterprise agreement. The court held that the changes were not negotiated in good faith and amounted to an attempt to impose new terms on the employees without proper consultation. The court further found that the termination was unlawful as it occurred before the nominal expiry date of the agreement. Consequently, the application was granted, and the court declared that the enterprise agreement had been terminated before its nominal expiry date. The court ordered that the respondent pay costs and further directed the parties to negotiate in good faith to reach a new enterprise agreement.

Woodrowe Tree Technicians Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established