ACG National Pty Ltd

[2014] FWCA 7485

[2014] FWCA 7485

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

ACG National Pty Ltd
(AG2014/8827)

ACG CORPORATE SERVICES COLLECTIVE AGREEMENT 2007 (VICTORIA)

Security services
COMMISSIONER GREGORY	MELBOURNE, 30 OCTOBER 2014

Application for termination of the ACG Corporate Services Collective Agreement 2007 (Victoria).

[1] On 2 September 2014 ACG National Pty Ltdfiled an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”) to terminate the ACG Corporate Services Collective Agreement 2007 (Victoria) (“the Agreement”).

[2] The application was dealt with in a hearing before the Fair Work Commission (“the Commission”) on 21 October 2014. At the conclusion of that hearing I issued a decision in transcript approving the termination of the Agreement. I now confirm the terms of that decision. It has been subject to appropriate editing without changing the intent of the decision.

[3] The Agreement that is the subject of the application is a collective agreement-based transitional instrument which has passed its nominal expiry date.

[4] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (“the Act”)applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am accordingly satisfied that the Agreement is a collective agreement-based transitional instrument that has passed its nominal expiry date.

[5] Section 225 in Subdivision D of Division 7 of Part 2-4 of the Act provides that an application to terminate an enterprise agreement that has passed its nominal expiry date can be made by either one or more of the employers covered by the Agreement, an employee covered by the Agreement, or an employee organisation covered by the Agreement.

[6] Section 226 of the Act then continues to set out the circumstances in which the Commission must terminate an enterprise agreement after an application has been made under s.225. It provides as follows:

“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.” 1

[7] The application in this case has been made by an Employer covered by the Agreement. In summary, the Employer submits that termination of the Agreement will mean the employees are covered by the Security Services Industry Award 2010 (“the Award”). It submits the Award provides terms and conditions of employment that are more advantageous to the employees. By way of support for this submission the Applicant previously provided a detailed table comparing the provisions contained in the existing Agreement, and those contained in the Award.

[8] The Applicant has also provided a notice to the employees covered by the Agreement setting out the reasons why the application was being made, and what the impact of the Agreement being terminated would mean for the employees. The notice also provided details of when the matter was set down for hearing in the Commission, and indicated that any employee who wished to make submissions at the hearing about the application could do so.

[9] Mr Bernard Castillo, the General Manager of ACG Security, Southern Region, also provided evidence in support of the application. He indicated that the notice was made known to employees by posting on notice boards, as well as by including in the communications book, that each Security Officer uses during a handover period to another incoming or exiting Officer.

[10] However, no employee sought to appear in the proceedings when the matter came on for hearing before the Commission. In addition, no employee contacted the Commission to indicate any concern or objection to the application.

[11] I am satisfied, firstly, that there is nothing that suggests it would be contrary to the public interest to terminate the agreement.

[12] I am also satisfied that the Employer, who is the Applicant in this matter, supports the termination of the Agreement. I am also satisfied that the employees covered by the Agreement have been provided with relevant information about the application, and have been provided with an appropriate opportunity to appear in the proceedings, if they wished. I am accordingly satisfied that the employees have had the opportunity to make their views known about the application, and the fact that no objection has been raised in response, and no employee has sought to appear in the proceedings, indicates the employees do not object to the application. I am also satisfied that there is no employee organisation covered by the terms of the Agreement.

[13] I am also satisfied that the materials and submissions provided in support of the application indicate that the employees are likely to be beneficially affected by the termination of the Agreement, in that they will be covered by the terms and conditions contained in the Security Services Industry Award 2010, which provides terms and conditions of employment that are at least as beneficial, if not more so, than the terms and conditions contained in the existing Agreement.

[14] Having come to these conclusions s.226 of the Act provides that I must terminate the Agreement. The Agreement is therefore terminated and in accordance with s.227 termination takes effect from the date the decision was handed down in transcript, being 21 October 2014.

COMMISSIONER

 1   Fair Work Act 2009 (Cth) at s.226.

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