Australian Concert & Entertainment Security Pty Ltd T/A Aces Security

[2023] FWCA 2819

[2023] FWCA 2819

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Australian Concert & Entertainment Security Pty Ltd T/A Aces Security

(AG2023/2812)

ACES (CASUAL EMPLOYEES) ENTERPRISE AGREEMENT 2001

Entertainment industry
COMMISSIONER CRAWFORD	SYDNEY, 4 SEPTEMBER 2023

Application for termination of the ACES (Casual Employees) Enterprise Agreement 2001

Background

1. An application has been made pursuant to Schedule 3, Item 16 of the Fair Work Act (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the FW TPCA Act) by Australian Concert & Entertainment Services Pty Ltd (the Applicant) for approval to terminate the ACES (Casual Employees) Enterprise Agreement 2001 (the Agreement). The nominal expiry date of the Agreement is 1 July 2004.  

1. Schedule 3 Item 16 of the FW TPCA Act provides:

“16 Collective agreement‑based transitional instruments: termination by the FWC

(1)Subdivision D of Division 7 of Part 2‑4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement‑based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement‑based transitional instrument.

(2)For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.”

1. Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) includes ss.225 and 226 of the Act. Those sections provide:

“Subdivision D—Termination of enterprise agreements after nominal expiry date

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.

226  Terminating an enterprise agreement after its nominal expiry date

(1)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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)          all of the following apply:

(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)         because of the insolvency or bankruptcy of the employer.

(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)the employees (unless there are no employees covered by the agreement);

(b)          each employer;

(c)          each employee organisation (if any).

Note:   The President may be required to direct a Full Bench to perform a

function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)whether bargaining for the proposed enterprise agreement is occurring; and

(c)whether the termination of the existing agreement would adversely affect the bargaining positionof the employees that will be covered by the proposed enterprise agreement.

(5)In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

Consideration

1. The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of 1 July 2004.

1. The Agreement covers the Media, Entertainment and Arts Alliance (MEAA). Several emails were sent to the MEAA seeking confirmation of whether it opposed the application. No response was provided. 

1. The application is supported by a Form F24C – Declaration made by Sonja Semmens on 16 August 2023. Ms Semmens declares that the Agreement does not currently cover, or apply to, any employees and that as a result there will essentially be no impact from the termination. On 1 September 2023, I received an email from the Applicant’s representative which confirmed that the Applicant does not intend to employ any person falling with the scope of the Agreement in the foreseeable future.

1. I am satisfied based on Ms Semmens’ declaration and the email dated 1 September 2023 that jurisdiction to terminate the Agreement is triggered under s.226(1)(b) because the Agreement does not cover any employees and is not likely to.

Determination

1. Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. None of the other factors in s.226 weigh against terminating the Agreement.

1. Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

COMMISSIONER

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