Australian Guarding Services Pty Ltd T/A Australian Guarding Services Pty Ltd

[2022] FWCA 155

[2022] FWCA 155

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Item 16 Sch. 3—Termination of transitional instrument

Australian Guarding Services Pty Ltd T/A Australian Guarding Services Pty Ltd

(AG2021/8967)

Australian Guarding Services Pty Ltd (Crowd Control - Shopping Centres & Venues) Enterprise Agreement 2001

Security services
COMMISSIONER JOHNS	MELBOURNE, 19 JANUARY 2022

Application for termination of the Australian Guarding Services Pty Ltd (Crowd Control Shopping Centres and Venues) Agreement 2004

1. This decision concerns an application by Australian Guarding Services Pty Ltd T/A Australian Guarding Services (Applicant), under Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), and as a consequence, section 225 of the Fair Work Act 2009 (Act).

1. The application seeks to terminate the Australian Guarding Services Pty Ltd (Crowd Control - Shopping Centres & Venues) Enterprise Agreement 2001 (Agreement). The Agreement is a collective agreement-based transitional instrument for the purposes of the Transitional Act.

Background

1. The application was lodged with the Fair Work Commission (Commission) on 14 December 2021. In support of the application a statutory declaration was filed by Harm Veeram, Managing Director, Australian Guarding Services Pty Ltd (Declaration). The Declaration outlined the background to the application and the steps the Applicant took to ensure the views of affected employees were taken into consideration and what the likely effect of the termination of the Agreement would be on the employees.

1. The Declaration stated that:

• “This agreement has passed its nominal expiry date being 30 June 2003.
• Australian Guarding Services no longer employs staff under this Agreement and currently has five employees covered under this Agreement. All other employees are covered under the relevant modern award being the MA000016: Security Services Industry Award 2020 (Award).”

1. On 17 December 2021 Harm Veerman filed a statutory declaration stating that the Applicant had served a copy of my Directions dated 17 December 2021, the Form F28 Application, the Form F24C Statutory Declaration and any other accompanying documents filed with the application to any affected employees and employee organisation.

1. No opposition to the proposed termination of the Agreement was received.

Relevant legislation

1. The Commission must give consideration to the following legislation to determine whether it is viable to terminate the Agreement.

2. Item 16 of Schedule 3 of the Transitional Act provides:

   16 Collective agreement-based transitional instruments: termination by FWA

   (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.”

3. Subdivision D of Division 7 of Part 2-4 of the Act 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.

   226 When the FWC must terminate an enterprise agreement

   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 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 day specified in the decision to terminate the agreement

1. On the basis of the material before it, the Commission is satisfied that the termination of the Agreement would not be contrary to the public interest (section 226(a) of the Act). Further, in accordance with section 226(b) of the Act, the Commission has considered the circumstances of the matter and have concluded that termination of the Agreement is appropriate.

1. Therefore, in accordance with section 226 of the Act, the Commission must terminate the Agreement. The application to terminate the Agreement is approved.

1. The termination will take effect from the date of this decision, 19 January 2022.

COMMISSIONER

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