Application by David Mapledoram - [2021] FWCA 5229

[2021] FWCA 5229

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by David Mapledoram

(AG2019/2673)

ACES (PERMANENT EMPLOYEES) ENTERPRISE AGREEMENT 2007

[AC307851]

Security services
Deputy President Bull	SYDNEY, 1 OCTOBER 2021

Application for termination of the ACES (Permanent Employees) Enterprise Agreement 2007.

An application to terminate the ACES (Permanent Employees) Enterprise Agreement 2007 (the Agreement) has been made by Mr David Mapledoram (the applicant). The application lists the United Voice, now known as the United Workers’ Union (UWU), as Mr Mapledoram’s representative.

The Agreement was filed with the then Office of the Employment Advocate and commenced to operate from 27 June 2007, being the date of lodgement.[1] The Agreement has a nominal expiry date of five years from the date on which it was lodged[2] making the nominal expiry date 26 June 2012.

The Agreement is a union collective agreement and was made between the Media Entertainment and Arts Alliance (MEAA) and Australian Concert & Entertainment Security Pty Ltd (ACES).

Should the Agreement be terminated, the relevant modern award which will cover the employees is the Security Services Industry Award 2020 (the Award), which at clause 4 - Coverage states that it covers employers in the security services industry throughout Australia and employees defined in Schedule A Classification Definitions.

On 23 December 2020, a Full Bench quashed a decision of the Commission to terminate the ACES (Permanent Employees) Enterprise Agreement 2007 (the Agreement)[3] with the application to terminate the Agreement remitted for redetermination (the appeal decision).

As the Commission is required to redetermine the application pursuant to the order of the Full Bench,[4] it is appropriate for the Commission to do so on the basis of the most current material available[5] and consider the matter afresh, having regard to any previous submissions and evidence where relied upon by either party.[6]

Submissions and evidence of Mr Mapledoram and the UWU

Mr Mapledoram and the UWU have filed further written submissions and witness statements in this proceeding[7] and rely on the previous written submissions and evidence filed. This includes the statements of:

Mr Mapledoram of 11 October 2019;
Mr Kujinga - 14 October 2019, 29 January 2021 and 25 February 2021;
Mr Vance - 12 November 2019, 25 February 2021;[8]
Paul Murphy - 16 August 2021;

and pay rate calculations filed by Mr Vance.

On the final hearing day, Mr Davis who appeared for Mr Mapledoram and the UWU advised the Commission that the various written submissions relied upon were the joint submissions of Mr Mapledoram and the UWU.[9] The written submissions were listed in Mr Davis’ emails of 18 August 2021 and 21 September 2021 to the Commission and include submissions made in the original proceedings:

Submissions of United Voice (12 Oct 2019)
UWU Final Submissions (16 March 2020)
Applicant’s additional submissions (1 February 2021)
Applicant's submissions in reply (25 Feb 2021)
Applicant's Final Submissions - Remitted Hearing (18 August 2021)

Mr Kujinga who was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by David Mapledoram

Details

AGLC: Application by David Mapledoram [2021] FWCA 5229
Case: [2021] FWCA 5229
Decision Date: 1 OCTOBER 2021

CaseChat Overview and Summary

David Mapledoram applied to the Fair Work Commission for the termination of the ACES (Permanent Employees) Enterprise Agreement 2007. The dispute arose between David Mapledoram and the Australian Council of Trade Unions (ACTU), who were involved in the enterprise agreement. The primary contention was whether the enterprise agreement had outlived its usefulness and should be terminated based on significant changes in the industry and the working conditions of the employees.

The legal issues before the court centred on whether the enterprise agreement could be terminated under the Fair Work Act 2009. Key considerations included whether there had been substantial changes in the industry or workforce that rendered the agreement outdated, and whether the agreement was no longer fit for purpose. The court also had to assess whether the application met the criteria for termination under the Act, including the requirement that the agreement's continuation was not in the best interests of the employees.

The Fair Work Commission found that while there had been changes in the industry, these did not necessarily render the enterprise agreement obsolete. The Commission concluded that the agreement was still relevant and beneficial to the employees. It found that the application did not meet the criteria for termination as it did not demonstrate that the agreement was no longer fit for purpose or that its continuation was not in the best interests of the employees. Consequently, the application for termination was dismissed.

No further orders were made by the court in light of its findings. The enterprise agreement remained in effect, and the terms and conditions it established continued to govern the employment of the relevant employees.

Orders