Andrew Hertel-Smith

[2017] FWCA 2717

[2017] FWCA 2717

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Andrew Hertel-Smith
(AG2016/1018)

BUSINESS RISKS INTERNATIONAL (VICTORIA) PTY LTD VICTORIA EMPLOYEE COLLECTIVE AGREEMENT 2007

Security services
COMMISSIONER GREGORY	MELBOURNE, 22 MAY 2017

Application for termination of the Business Risks International (Victoria) Pty Limited Employee Collective Agreement 2007.

Introduction

[1] Mr Andrew Hertel-Smith (“the Applicant”) has made application under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the Transitional Act”) to terminate the Business Risks International (Victoria) Pty Limited Employee Collective Agreement 2007 (“the Agreement”). Mr Hertel-Smith indicates in the application that he is an employee of Business Risks International (Victoria) Pty Ltd. The application also indicates that the Agreement is a collective agreement-based transitional instrument that has passed its nominal expiry date.

[2] Clause 2 of the Agreement indicates that the “parties bound and covered by this Agreement” 1 are Business Risks International (Victoria) Pty Ltd and “all Employees of BRI provided for in the Employment Classification Structure of this Agreement.”2

[3] The application was initially opposed by the employer, Business Risks International (Victoria) Pty Ltd, and the application was accordingly set down for hearing dealt on 12 July 2016 in order to determine the matter. Mr Y. Bakri of Counsel appeared on behalf of the Applicant. Mr L. Crossman appeared on behalf of Business Risks International. Both were granted permission to appear under s.596(2)(a) as the matter involves a degree of complexity and their involvement might enable it to be dealt with more efficiently. However, the parties subsequently advised during the course of that hearing that they sought an adjournment of the matter to enable further discussions between the parties to take place.

[4] The Commission subsequently received correspondence from the Applicant and the Employer, together with further advice from United Voice, who also have an interest in the matter, advising that the application was no longer in opposed by the Employer.

Consideration

[5] As indicated, Mr Andrew Hertel-Smith has made application under the Transitional Act to terminate the Agreement. The Transitional Act provides in Item 16 of Schedule 3 that Subdivision D of Division 7 of Part 2 – 4 of the Fair Work Act 2009, which deals with termination of enterprise agreements after their nominal expiry date, also applies in relation to termination of a collective agreement-based transitional instrument that has passed its nominal expiry date.

[6] The relevant provisions are contained in ss. 225, 226, and 227 of the Fair Work Act 2009. Section 225 states:

“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;

(c) an employee organisation covered by the agreement.” 3

[7] Sections 226 and 227 continue to state:

“226 When the FWC must terminate an enterprise agreement

• an application for the termination of an enterprise agreement is made under s. 225, the FWC must terminate the agreement if:



• 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.”

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the date specified in the decision to terminate the agreement.” 4

[8] I am satisfied in response that the application has been made by an employee covered by the Agreement and the Agreement is a collective agreement-based transitional instrument that has passed its nominal expiry date.

[9] The Employer has also now confirmed that it has no objection to the Agreement being terminated. The submissions and evidence provided in the proceedings also indicate that United Voice, who is the Union with coverage of the relevant employees, has previously sought to make contact with as many employees covered by the Agreement as possible by means of telephone call outs and site visits. Those submissions and that evidence indicate that those employees who were contacted in this way also support termination of the Agreement.

[10] I am also satisfied that it would not be contrary to the public interest to terminate the agreement. Termination will result in the employees being covered by the Security Services Industry Award 2010 5until such time as a new enterprise agreement is made and approved.

[11] In accordance with the provisions contained in ss. 225 and 226 of the Fair Work Act 2009 the Business Risks International (Victoria) Pty Limited Employee Collective Agreement 2007 is terminated and, as provided for in s.227, termination will take effect from the date of this decision, being 22 May 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, AC304690  PR593001>

 1   Business Risks International (Victoria Pty Ltd Employee Collective Agreement 2007, AC304690, at cl 2.

 2   Ibid.

 3   Fair Work Act 2009 (Cth).

 4   Ibid.

 5   MA000016.