Iron Mountain Australia Group Services Pty Ltd
[2022] FWCA 2512
•26 JULY 2022
| [2022] FWCA 2512 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Iron Mountain Australia Group Services Pty Ltd
(AG2022/2046)
Iron Mountain Australia Group Services Pty Ltd NSW Oakdale - Enterprise Agreement 2019
| Storage services | |
| COMMISSIONER MATHESON | SYDNEY, 26 JULY 2022 |
Application for termination of the Iron Mountain Australia Group Services Pty Ltd NSW Oakdale - Enterprise Agreement 2019.
On 21 June 2022, Iron Mountain Australia Group Services Pty Ltd (Applicant) filed an application (Application) pursuant to s.225 of the Fair Work Act 2009 (Cth) (Act) to terminate the Iron Mountain Australia Group Services Pty Ltd NSW Oakdale - Enterprise Agreement 2019 (Agreement). A Form F24C – Declaration in relation to termination of an enterprise agreement after the nominal expiry date (Form F24C) was filed in support of the Application.
The Agreement is a single enterprise agreement. It was approved by Commissioner Cirkovic on 12 July 2019.[1]
The nominal expiry date of the Agreement is 1 April 2022.
Legislation
The relevant provisions of the Act are 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.”
Consideration – s.225
Is the Applicant an employer covered by the Agreement?
Clause 3(a) of the Agreement names Iron Mountain Australia Group Services Pty Ltd as a party to the Agreement. The Applicant is Iron Mountain Australia Group Services Pty Ltd and I am satisfied it is the same legal entity.
Having considered the materials before the Commission, I am satisfied that the Applicant is an employer covered by the Agreement and has standing to bring the Application.
Has the Agreement passed its nominal expiry date?
Clause 4 of the Agreement provides that the nominal expiry date of the Agreement is 1 April 2022. Having considered the materials before the Commission and clause 4 of the Agreement, I am satisfied the Agreement has passed its nominal expiry date.
Consideration – s.226
Section 226(a) – Public interest
Section 226(a) of the Act requires the Commission to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards.[2] The notion of public interest is distinct in nature from the interests of the parties.[3]
It is declared in the Form F24C that:
· the Agreement expired on 1 April 2022 and currently there are ten employees covered under the Agreement;
· the company is not planning to recruit any staff in near future;
· all employees have voted in favour of the proposed termination of the Agreement;
· all employees have agreed and voted in favour to be under an individual employment agreement, with the Storage Services and Wholesale Award 2020 (Award) as the underpinning award;
· the company will retain the employee’s current above Award wages and apply the company’s severance policy under an individual employment agreement; and
· in the event of new hires, Oakdale frontline operations staff will be recruited under the Award.
Having considered the material before the Commission, I am satisfied that the circumstances of this Application are such that the consequences of termination would not have effect beyond the parties.
In all the circumstances, and having considered the materials before the Commission, I am satisfied that it is not contrary to the public interest to terminate the enterprise Agreement.
Section 226(b) – Appropriateness
On 23 June 2022, the Commission directed that the Applicant:
· serve a copy of the directions, the Form F24B, the Form F24C and any other accompanying documents on each employee and employee organisation covered by the Agreement and file a statutory declaration confirming compliance; and
· file and serve on each employee and employee organisation covered by the Agreement an outline of argument, statements of evidence or other documents the Applicant intends to rely upon in support of its application to terminate the Agreement.
The Applicant filed a statutory declaration confirming compliance with the above directions.
The Commission’s directions required that any employee or employee organisation covered by the Agreement who opposes the termination of the Agreement file in the Commission and serve on the Applicant any submissions, statements of evidence or other documents it intends to rely upon in opposition to the Application to terminate the Agreement by 11 July 2022. The directions also noted that if any employee or employee organisation covered by the Agreement opposed the Application, the matter would be listed for hearing and the absence of opposition to the Application would result in the matter being determined on the papers.
There are no employee organisations covered by the Agreement and no employee made submissions or raised any objections to the Application.
It is declared in the Form F24C that:
· currently there are ten staff under the Agreement who have all voted in favour of the proposed termination of the Agreement;
· the current ten staff under the Agreement have agreed and voted in favour the Award having application;
· the current ten employees under the Agreement will get a 2.99% increase to their current rate post approval of the proposed termination of the Agreement. The Applicant noted that the current rate is significantly higher than those in the Award (between 18% and 34%);
· the current ten staff will be eligible for annual pay reviews;
· the current ten employees will have the opportunity to participate in the company’s annual incentive scheme with the potential to earn up to 5% of their annual base pay;
· the current ten employees will be entitled to the provisions of the company’s Severance Policy, which is significantly more generous than the National Employment Standards entitlements, providing 3 weeks for every completed year of service up to a maximum cap of 52 weeks; and
· the Applicant has agreed to vary the Award’s span of ordinary hours as requested by the employees (i.e. 8am to 6:30pm, Monday – Friday, or 7am to 5:30pm, Monday – Friday) and this will be documented in individual employment agreements. I understand this to mean by way of individual flexibility arrangements that meet the requirements of the Award.
In all the circumstances, and taking into account the relevant provisions in s.226(b) of the Act, I consider that it is appropriate to terminate the Agreement.
Conclusion
Having regard to the requirements of s.226 of the Act and based on the material before the Commission, I am satisfied that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to do so having regard to all the circumstances.
Pursuant to s.226 of the Act, the Agreement is terminated. In accordance with s.227 of the Act, the termination of the Agreement shall operate from 26 July 2022. An Order to that effect will be issued in conjunction with this Decision.
COMMISSIONER
[1] [[2019] FWCA 4863].
[2] Re Kellogg Brown and Root, Bass Strat (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40-41.
[3] Ibid, 40.
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