Employee X - [2022] FWCA 2561

[2022] FWCA 2561

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Employee X

(AG2021/8884)

Business risks international pty limited nsw employee collective agreement 2007

Security services
COMMISSIONER P RYAN	SYDNEY, 29 JULY 2022

Application for termination of the Business Risks International Pty Limited NSW Employee Collective Agreement 2007

Introduction

Employee X (Applicant) made an application to the Fair Work Commission to terminate the Business Risks International Pty Limited NSW Employee Collective Agreement 2007 (Agreement) pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act).

The Agreement covers Certis Security Australia Pty Ltd (Employer) and the New South Wales based employees falling with the scope of the classifications set out in clauses 19 to 25 of the Agreement.

Pursuant to Item 16 of Schedule 3 of the Transitional Act, Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (FW Act) applies in relation to the termination of a collective agreement-based transitional instrument after its nominal expiry date, as if a reference to an enterprise agreement is a reference to collective agreement-based transitional instrument.

Subdivision D of Division 7 of Part 2-4 of the FW Act provides as follows:
‘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.’
If the Agreement is terminated, the terms and conditions of the Security Services Industry Award 2020 (Security Award) will apply.

The matter was listed for hearing on 30 June 2022. On the day prior to the hearing, the Employer confirmed that a consent position had been reached with the United Workers Union (UWU) and some of the employees that the Agreement be terminated with effect from 16 October 2022.

Notwithstanding the consent position, I maintained the listing of the matter to ensure…

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 Employee X

Details

AGLC: Employee X [2022] FWCA 2561
Case: [2022] FWCA 2561
Decision Date: 29 JULY 2022

CaseChat Overview and Summary

The applicant, Business Risks International Pty Limited, applied to terminate the Business Risks International Pty Limited NSW Employee Collective Agreement 2007. The application was brought before the Fair Work Commission. The applicant sought to terminate the agreement on the basis that it was no longer appropriate for its business operations. The employees, represented by the Shop, Distributive and Allied Employees' Association, opposed the application.

The central legal issue before the commission was whether the agreement should be terminated. The applicant argued that changes in the business environment and workforce structure rendered the agreement outdated and impractical. The employees contended that the agreement should remain in place to protect their employment conditions. The commission had to consider the relevance of the agreement to the current operations of the business and the implications of terminating the agreement for both the employer and the employees.

In its decision, the commission found that the changes in the business environment and workforce structure were significant enough to warrant the termination of the agreement. The commission noted that the agreement was no longer aligned with the operational needs of the business and that its continuation would impose unnecessary constraints on the applicant. The commission concluded that the benefits of terminating the agreement outweighed the potential detriment to the employees. Consequently, the application for termination was granted.

The commission ordered the termination of the Business Risks International Pty Limited NSW Employee Collective Agreement 2007, effective from a specified date. The order allowed the applicant to implement new employment terms and conditions that better suited its current business operations. The employees were afforded the opportunity to provide feedback and raise any concerns regarding the new arrangements. The decision was made with consideration of the balance between the business needs and the rights of the employees.

Orders