Application by Glen Mathew McBlane - [2023] FWCA 1033

[2023] FWCA 1033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Application by Glen Mathew McBlane

(AG2022/5311)

Bluestar Security - Enterprise Agreement - 2014

[AE408918]

Security services
JUSTICE HATCHER, PRESIDENT	SYDNEY, 6 APRIL 2023

Application for termination of the Bluestar Security - Enterprise Agreement - 2014 – Fair Work Act 2009 (Cth) ss 225, 226 – application ultimately not opposed – agreement terminated.

Introduction and background

On 16 December 2022, Glen McBlane applied pursuant to s 225 of the Fair Work Act 2009 (Cth) (FW Act) for termination of the Bluestar Security - Enterprise Agreement - 2014[1] (Agreement) under s 226. The Agreement nominally expired on 15 July 2018, but has not been replaced. The employer covered by the Agreement is Knightwatch Security Pty Ltd t/a Bluestar Security (Bluestar).

The application was initially allocated to Deputy President Boyce. It was referred to me on 29 December 2022 because, on that date, Bluestar advised the Deputy President’s chambers that it opposed the application. Bluestar also informed the Deputy President that it raised a jurisdictional objection to the application, being that Mr McBlane was not an employee of Bluestar at the time he filed the application and thus did not have standing to apply under s 225. Section s 615A(3) of the FW Act requires the President of the Commission to direct a Full Bench to perform a function or exercise a power in relation to a matter arising under s 226 in relation to an application for the termination of an enterprise agreement if the application is opposed, relevantly, by the employer covered by the agreement. Thus, Bluestar’s stated opposition to the application indicated that it would be necessary to refer it for determination by a Full Bench in accordance with s 615A(3).

On 13 January 2023, I held a directions hearing in the matter. Mr McBlane was represented by the United Workers’ Union (UWU), although the UWU is not itself covered by the Agreement. At the directions hearing, Bluestar’s representative advised that it no longer pressed its jurisdictional objection. Following the directions hearing, I issued directions for Bluestar to file and serve submissions and evidence in response to the application, as well as to provide a copy of the application and Mr McBlane’s accompanying declaration to each employee covered by the Agreement and invite them to provide their views on the application to my chambers. I also directed Mr McBlane to file and serve submissions and evidence in reply.

On 2 February 2023, the UWU advised my chambers that following discussions, Bluestar no longer opposed the application and ‘the parties’ (Mr McBlane, the UWU and Bluestar) had reached a consent position that termination of the Agreement should take effect 12 weeks from the date of the termination decision, and that the application could be determined without a hearing. The parties also sought further directions to enable employees covered by the Agreement to provide their views on the application to my chambers on a confidential basis, that is,…

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 Glen Mathew McBlane

Details

AGLC: Application by Glen Mathew McBlane [2023] FWCA 1033
Case: [2023] FWCA 1033
Decision Date: 6 APRIL 2023

CaseChat Overview and Summary

In the matter of an application for termination of the Bluestar Security - Enterprise Agreement - 2014, Glen Mathew McBlane, an employee of Bluestar Security, applied under the Fair Work Act 2009 (Cth) for the termination of his enterprise agreement. The agreement, which had nominally expired on 15 July 2018, had not been replaced. The application was initially opposed by Bluestar, but later the parties reached a consent position for the agreement's termination.

The primary legal issue before the court was whether the continued operation of the enterprise agreement would be unfair for the employees covered by it, as required under s 226(1)(a) of the Fair Work Act 2009 (Cth). Additionally, the court had to determine if it was appropriate in all the circumstances to terminate the agreement, as required under s 226(1A) of the Act.

The court found that the continued operation of the Agreement would indeed be unfair for the employees covered by it. The evidence demonstrated that employees were significantly worse off under the Agreement than they would have been if they were paid in accordance with the relevant award. The court found several instances of the Agreement's terms being inferior to those under the award, including casual rates of pay and overtime penalty rates. Furthermore, the court was satisfied that termination of the Agreement was appropriate in all the circumstances, as it was supported by the employer, the United Workers' Union, and the only employee who expressed a view on the application. The court also noted that nobody opposed the termination, and that termination would result in employees of Bluestar receiving their minimum entitlements under the award.

The court terminated the Bluestar Security - Enterprise Agreement - 2014, with the effective date of termination being 12 weeks from the date of the decision. This decision allows for a transition period for the employer to discuss any changes with its employees and update its payroll system accordingly.

Final orders:
1. The Bluestar Security - Enterprise Agreement - 2014 is terminated.
2. The effective date of termination is 12 weeks from the date of this decision.

Orders