Divadeus Pty Ltd T/A Makesafe Security Solutions

[2014] FWCA 5442

[2014] FWCA 5442

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Divadeus Pty Ltd T/A Makesafe Security Solutions
(AG2014/8541)

MAKESAFE SECURITY SOLUTIONS COLLECTIVE EMPLOYMENT AGREEMENT 2009 VICTORIAN EMPLOYEES

Security services
COMMISSIONER GREGORY	MELBOURNE 10 NOVEMBER 2014

Application for termination of the Makesafe Security Solutions Collective Employment Agreement 2009 Victorian Employees.

[1] An application has been made pursuant to Item 15 in Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the Makesafe Security Solutions Collective Employment Agreement 2009 Victorian Employees (the Agreement). The nominal expiry date of the Agreement is 21 June 2014.

[2] The Application was lodged outside of the 14 day time limit set out by the Act. However, I have accepted the explanation provided by the Applicant as to why this occurred and I consider it appropriate in the circumstances to exercise the discretion provided for in s.222(3)(b) to extend the time for making application to the date it was made.

[3] The relevant legislation provides that I must approve the termination of the Agreement if I am satisfied that each of the requirements of section 223 of the Fair Work Act 2009 (the Act) have been met. Section 223 provides as follows:

“223 When FWA must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[4] S.220 also states:

“(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve the proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

[5] S.221 continues to state in regard to a single enterprise agreement:

“(1) If the employees of an employer, or each employer, covered by a single enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220 (1), the termination is agreed to when a majority of the employees who cast a vote approve the termination.”

[6] A statutory declaration of Mr David McNamara, the Managing Director of Makesafe Security Solutions, accompanied the application. The statutory declaration indicates that on 28 April 2014 a letter was sent to all of Makesafe’s employees by email. The letter was entitled “Change to Employment Conditions - Cessation of Collective Employment Agreement (Victorian Employees) 2009,” and advised that in connection with the expiry of the Agreement Makesafe was intending to have the employees’ terms and conditions of employment covered by those contained in the Security Services Award 2010. The statutory declaration indicates that the letter continued to outline:

“Some key changes to the employees’ pay rates, loadings and allowances and provided an illustrative example of the effect of such changes.” 1

[7] The statutory declaration by Mr McNamara states that the letter concluded with a summary of the steps that it proposed be taken by employees from that point. Specifically:

• Staff were to begin preparing for any changes in connection to the transition to the Award.



• Supervisors were to print the letter and post copies of it on all staff notice boards. They were also to arrange for all staff under their supervision to sign of copy of the letter once they had read and understood it.



• It was also proposed that any employee could calculate any specific variations to their pay as a result of the proposed changes by following a link to the Award provided in the letter.

[8] Mr McNamara continues to state that prior to sending the email of 28 April 2014:

“I had conducted various informal discussions with Makesafe supervisors and Makesafe senior security officers about a proposed transition from the Agreement to the Award.” 2

[9] He says that from 28 April 2014 to the end of June both he and the various Managers in the business took part in further consultative discussions with the employees about the transition from the Agreement to the Award.

[10] On 2 July the employees were informed by email that a vote would take place via ‘SurveyMonkey’ to determine if they agreed to terminate the Agreement in favour of the Award. The question put to the employees was, “Do you agree to the termination of the Makesafe Security Solutions Collective Employment Agreement 2009 (Victorian Employees) in favour of adopting the Security Services Industry Award MA000016?” The employees were then provided with the opportunity to participate in this voting process during a 9 day period from 2 July to 11 July 2014.

[11] Mr McNamara’s declaration concluded by stating that termination of the Agreement was agreed to on 11 July 2014, after each of the 86 employees voted, with the final result indicating that 63.95% voted to terminate the Agreement and to now be covered by the terms and conditions contained in the Security Services Industry Award 2010.

[12] Having considered the terms of the statutory declaration provided by Mr McNamara I am satisfied, firstly, that the provisions contained in s.220 of the Act have been satisfied in that the employer has requested that the employees consider the proposed termination of the agreement that covers them and, secondly, before making that request the employer has taken all reasonable steps to notify the employees about the time and place at which the vote will occur, and the voting method that will be used. I am also satisfied that this process has given the employees a reasonable opportunity to decide whether they want to approve the proposed termination of the agreement.

[13] I am accordingly satisfied that the majority vote of the employees in favour of termination confirms that termination of the agreement has been agreed to. I am also satisfied that there are no other reasonable grounds for believing the employees have not agreed to termination of the agreement.

[14] I am satisfied, in conclusion, that the termination of the Agreement must be approved under s.223 of the Act and in accordance with s.224 the termination operates from the date of this decision.

COMMISSIONER

 1   Statutory Declaration of David McNamara dated 5 August 2012 at para 13

 2   Ibid at para 12

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