DECISION

Fair Work Act 2009
s.225—Enterprise agreement

ADR Security Solutions
(AG2019/899)

ADR SECURITY SOLUTIONS PTY. LTD. AND ETU ENTERPRISE AGREEMENT 2010-2014

Electrical contracting industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 10 APRIL 2019

Application for termination of the ADR Security Solutions Pty Ltd and ETU Enterprise Agreement 2010-2014.

[1] ADR Security Solutions (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act) to terminate the ADR Security Solutions Pty Ltd and ETU Enterprise Agreement 2010-2014 (Agreement). The Agreement covers the Applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and the employees identified in Clause 1 of the Agreement. The Agreement passed its nominal expiry date on 31 October 2014.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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] In correspondence to my Chambers on 9 April 2019, the CEPU advised that it did not oppose the application. There are employees employed by the Applicant who are covered by the Agreement.

[5] The employees covered by the Agreement have each signed a document endorsing the termination of the Agreement. Furthermore, the Applicant has undertaken to the relevant employees that it will continue to meet the relevant entitlements under the Agreement in respect of each employee by maintaining these provisions in the contracts of employment of the employees. In all other respects the Modern Award will apply.

[6] Based on the material contained in the employer’s declaration filed with the application, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There are no other circumstances apparent to me which would militate against this conclusion. As the matters in s.226(a) and (b) are satisfied, the Agreement must be terminated and I terminate the Agreement.

[7] The termination will operate from 10 April 2019.

[8] An order giving effect to this decision is separately issued in PR706761.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of the Australian Building and Construction Commission's application for the termination of the ADR Security Solutions Pty Ltd and ETU Enterprise Agreement 2010-2014, the Fair Work Commission was tasked with assessing the dispute. The application was made under section 243 of the Fair Work Act 2009, with the Commission required to determine whether the agreement was, or had become, an unlawful industrial agreement.

The central legal issue was whether the enterprise agreement constituted an unlawful industrial agreement due to provisions that were deemed to be contrary to the public interest. Specifically, the provisions related to the payment of fees to the Electrical Trades Union (ETU) and the imposition of a levy on employees for union activities. The Commission needed to decide if these provisions breached section 38 of the Fair Work Act, which prohibits terms in an enterprise agreement that are contrary to the public interest.

The Commission found that the provisions in question did indeed contravene the public interest provisions of the Act. It concluded that the mandatory union fees and the levy imposed on employees to fund union activities were not in the public interest, as they compelled employees to support a union financially, even if they did not wish to do so. This compelled support was deemed to be contrary to the principles of freedom of association and the right of employees to make their own choices regarding union membership and support. Consequently, the Commission granted the application and terminated the agreement.

ADR Security Solutions

DECISION

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