DMS Maritime Pty Ltd T/A Serco Defence

[2021] FWCA 243

[2021] FWCA 243

FAIR WORK COMMISSION

DECISION

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

DMS Maritime Pty Ltd T/A Serco Defence
(AG2020/4130)

THE SERCO DEFENCE MARITIME COLLECTIVE AGREEMENT 2015

Maritime industry
DEPUTY PRESIDENT BULL	SYDNEY, 8 FEBRUARY 2021

Application for termination of The Serco Defence Maritime Collective Agreement 2015.

Background

[1] An application has been made by DMS Maritime Pty Ltd (DMS Maritime) pursuant to s.225 of the Fair Work Act 2009 (the Act) for the termination of The Serco Defence Maritime Collective Agreement 2015 1 (the Agreement).

[2] The Agreement was approved by the Fair Work Commission (the Commission) on 29 February 2016 and has now passed its nominal expiry date of 31 December 2018. 2 Section 225 of the Act applies to the termination of enterprise agreements that have passed their nominal expiry date and is set out below:

“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.”

[3] The Agreement at clause 4 Parties states that DMS Maritime Pty Limited and its parent company Serco Australia Pty Limited are covered by the Agreement. As stated above, the application to terminate the Agreement is made by DMS Maritime and thus being one of the named employers covered by the Agreement has standing to make the termination application as per s.225(a) set out above.

[4] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate is made.

“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.”

Public Interest

[5] The application was accompanied by a Form F24C – Employer declaration declared by Mr Matthew Schembri, Employment Relations Officer, who submitted that it would not be contrary to the public interest for the Agreement to be terminated for the following reasons:

“1. There are presently only four employees still covered by the Agreement.

a. Other than the Weapons Technician classifications all other classifications in the Agreement have been superseded by the more recent DMS Maritime Enterprise Agreement 2020 on improved terms.

2. Termination of this Agreement will be of public benefit as it will create greater certainty and avoid the complication of future employees potentially being covered by multiple Agreements or Agreements that are long outdated.

3. The terms of the DMS Maritime Enterprise Agreement 2020, which is still operational for all present staff, has terms superior to the various relevant Modern Awards.

3.1 Therefor [sic] the termination of this Agreement will in no way reduce or undermine entitlements (Re Agnew Legal Pty Ltd[2012] FWA 10861)

4. The four present employees not covered by the DMS Maritime Enterprise Agreement 2020 would also still enjoy coverage under the Manufacturing and Associated Industries and Occupations Award should the Agreement be terminated.

5. However, Serco has agreed new common law contracts on superior terms to both the award and outdated Agreement with all four employees. In particular the common law contracts provide for higher rates of pay.”

[6] For the reasons provided by the applicant, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

Employer views

[7] The applicant employer having made the application clearly supports termination of the Agreement; it is taken that the other named employer Serco Australia Pty Limited which is the parent company of the applicant also holds a similar view.

Employee Views

[8] There are four employees covered by the Agreement.

[9] On 19 January 2021, the applicant was directed to bring to the attention of the employees the application (including all documents) so that any employee views could be ascertained.

[10] The applicant was directed to provide evidence of how this was effected by no later than 4pm on 29 January 2021 and any views of employees were to be provided to the Commission by no later than 4pm on 5 February 2021.

[11] On 29 January 2021, Mr Matthew Schembri provided evidence of emails sent on 20 January 2021 to the four employees. These emails attached the application and all documents filed by the applicant and invited the views of the employees. Mr Schembri also provided an email response dated the same day from one of the employees, Ms Tanya Alemijivic, which expressed no issues or questions regarding the application.

[12] The Commission did not receive any further views from the other three employees.

Views of the Union

[13] The Agreement covers three unions:

● The Construction, Forestry, Maritime, Mining, and Energy Union (MUA Division) (CFMMEU)

● The Australian Institute of Marine and Power Engineers (AIMPE)

● The Australian Maritime Officers Union (AMOU)

[14] On 24 December 2020, the Commission wrote to each Union advising of the application and requesting that each Union provide its position in relation to the proposed termination by no later than 4pm, 15 January 2021.

[15] On 4 January 2021, the CFMMEU responded advising that it does not hold a view in relation to the proposed termination, and that the CFMMEU is content to have the decision determined by the Commission.

[16] On 15 January 2021, the AIMPE responded advising that it does not hold a view in relation to the proposed termination, and that the AIMPE is content to have the decision determined by the Commission.

[17] On 18 January 2021, the Commission wrote to the AMOU again, requesting a response as no response from the AMOU had been received.

[18] On 19 January 2021, the AMOU responded, advising that the AMOU has no issues to raise in relation to the proposed termination, and that the AMOU was happy for the Commission to determine the matter.

Effect of the termination

[19] It is submitted by the applicant that termination of the Agreement will provide clarity and certainty to the business and employees as to which instrument applies.

[20] It is further submitted that the termination will eliminate the risk of unintentional coverage for any future employees who may be employed into roles which resemble in some way a classification from a long-outdated Agreement.

[21] The applicant also submitted that the four employees who are affected by the termination have all reached agreement on new common law contracts which provide vastly improved terms to the Agreement.

Consideration

[22] The application having been made pursuant to s.225 of the Act and having considered and being satisfied that it is not contrary to the public interest to terminate the Agreement and taking into account all the circumstances including the views of employees, employers and each employee organisation and the circumstances of those parties including the likely effect that the termination will have on each of them, the Commission considers that it is appropriate to terminate the Agreement.

[23] The Agreement is terminated and pursuant to s.227 of the Act, the termination will operate from the date of this Decision.

[24] An order to terminate the Agreement [PR726738] will issue with this Decision.

DEPUTY PRESIDENT

 1   AG2015/7107

 2   [2016] FWCA 1282

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