Iron Mountain Australia Group Services Pty Ltd T/A Iron Mountain Australia Group Services Pty Ltd

[2024] FWCA 4606

[2024] FWCA 4606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Application for termination of an enterprise agreement after its nominal expiry date

Iron Mountain Australia Group Services Pty Ltd T/A Iron Mountain Australia Group Services Pty Ltd

(AG2024/4578)

IRON MOUNTAIN AUSTRALIA GROUP SERVICES PTY LTD VICTORIA (PORT MELBOURNE AND TRUGANINA) ENTERPRISE AGREEMENT 2022

Storage services
COMMISSIONER YILMAZ	MELBOURNE, 19 DECEMBER 2024

Application for termination of the Iron Mountain Australia Group Services Pty Ltd Victoria (Port Melbourne and Truganina) Enterprise Agreement 2022

1. Iron Mountain Australia Group Services Pty Ltd (the Applicant) has made an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate the Iron Mountain Australia Group Services Pty Ltd Victoria (Port Melbourne and Truganina) Enterprise Agreement 2022 (the Agreement). The Applicant is the employer covered by the Agreement.

1. The Agreement is a single enterprise agreement and was approved by the Commission on 22 December 2022. It reached its nominal expiry date on 30 June 2024.

1. 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.”

1. Section 226 of the Act provides:

“226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

(b)  the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c)  all of the following apply:

(i)  the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

(ii)  the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)  if the agreement contains terms providing entitlements relating to the termination of employees' employment--each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)  However, the FWC must terminate the enterprise agreement under subsection   (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)  This subsection covers a termination of the employment of an employee:

(a)  at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

(b)  because of the insolvency or bankruptcy of the employer.

(3)  In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)  the employees (unless there are no employees covered by the agreement);

(b)  each employer;

(c)  each employee organisation (if any).

Note:  The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection  615A(3)).

(4)  In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)  whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

(b)  whether bargaining for the proposed enterprise agreement is occurring; and

(c)  whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)  In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”

1. The Application was supported by a declaration made by Mr Raman Nagra on 18 November 2024.

1. Mr Nagra declared, among other things, that the Agreement currently covers 6 employees, of whom 5 voted to be covered instead by an individual employment agreement (the Individual Agreements) which incorporates the Storage Services & Wholesale Award 2020 (Award). Mr Nagra further declared that, under the Individual Agreements, the employees covered by the Agreement will receive a pay increase of 3% on the hourly rates of pay under the Agreement, which is between 23% and 57% above the Award rates of pay. Further, the employees covered by the Agreement will be entitled to the provisions of the Applicant’s severance policy, which is more beneficial than the current applicable NES provision, and employees will be eligible for an annual pay review cycle as per the Applicant’s company-wide policy.

1. On 4 December 2024, I issued Directions to the parties, directing the Applicant to communicate in writing to each of the employees covered by the Agreement, serving a copy of the Directions and the Application on them, and inviting them to correspond with Chambers by email should they wish to provide views as to the termination of the Agreement, by close of business on 13 December 2024. The Applicant confirmed compliance with this direction on 5 December 2024. The United Workers’ Union (UWU) being a bargaining representative for the Agreement was directed to provide its views by close of business on 13 December 2024.

1. The UWU advised my Chambers by email on 11 December 2024 that it does not oppose the termination of the Agreement.   

1. I am satisfied that the employees participated in a confidential and independent voting process in favour of terminating the agreement, and despite the additional opportunity to provide their views to the Commission as to the termination of the Agreement, they did not do so.

1. Based on the materials that are before the Commission, including Mr Nagra’s declaration, the independent declaration of voting results and the views of the UWU, I am satisfied that the termination of the Agreement is not contested and the requirements of s.226 of the Act have been met. Based on the material before the Commission the matter can be determined on the papers. In particular, I have had regard to the views of those covered by the Agreement and I am satisfied that the Agreement may be terminated on the grounds that its continued operation would be unfair for the employees covered by the Agreement.

1. I find that it is appropriate to approve the termination of the Agreement taking into account s.226 of the Act including the views of the employees and employee organisation covered by the Agreement.

1. Accordingly, the termination will operate from 19 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE518690 PR782677>