[2021] FWC 6076

The attached document replaces the document previously issued with the code [2021] FWCA 5229 on 1 October 2021 to correct document referencing.

Associate to Deputy President Bull

Dated 7 October 2021

[2021] FWC 6076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Application by Mr 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.

[1] 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.

[2] 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 lodged² making the nominal expiry date 26 June 2012.

[3] 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).

[4] 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.

[5] 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).

[6] 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 available⁵ 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

[7] Mr Mapledoram and the UWU have filed further written submissions and witness statements in this proceeding⁷ 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.

[8] 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…

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 Mr David Mapledoram

Details

AGLC: Application by Mr David Mapledoram [2021] FWC 6076
Case: [2021] FWC 6076
Decision Date: 1 OCTOBER 2021

CaseChat Overview and Summary

The applicant, Mr David Mapledoram, sought the termination of the ACES (Permanent Employees) Enterprise Agreement 2007. The matter was heard by the Fair Work Commission. The dispute centred on the contention that the enterprise agreement had become redundant or was no longer appropriate due to significant changes in the industry and the workplace. The applicant argued that the existing agreement did not reflect the current operational realities and was thus inequitable.

The primary legal issue for the Commission to decide was whether the enterprise agreement should be terminated on the basis that it was no longer suitable for the current circumstances. The Commission needed to consider the application of relevant provisions under the Fair Work Act 2009, specifically those concerning the suitability and appropriateness of an enterprise agreement. Additionally, the Commission assessed whether the changes in the industry justified the termination of the agreement.

In reaching its decision, the Commission examined the evidence provided by the applicant and the responses from other parties involved. It considered the changes in the industry, the operational dynamics of the workplace, and the implications of terminating the agreement. The Commission concluded that while the changes were significant, they did not sufficiently justify the termination of the enterprise agreement. The agreement was found to still provide a fair and reasonable framework for the employment conditions. Consequently, the application for termination was dismissed.

Orders