Kiean James Hardacre

[2017] FWCA 1367

[2017] FWCA 1367

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Kiean James Hardacre
(AG2016/3585)

CSO AUSTRALIA SECURITY PTY LTD COLLECTIVE AGREEMENT

Security services
COMMISSIONER SPENCER	BRISBANE, 8 MARCH 2017

Application for termination of the CSO Australia Pty Ltd Collective Agreement 2008.

[1] Mr Kiean James Hardacre (the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) to terminate the CSO Australia Security Pty Ltd Collective Agreement 2008 1 (the Agreement).

[2] Item 16 of Schedule 3 of the Transitional Act provides that:

“Collective agreement-based transitional instruments: termination by FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.”

[3] The relevant provisions in Part 2-4 of the Fair Work Act 2009 (the FW Act) are ss.225 and 226.

[4] Section 225 of the 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.”

[5] Section 226 of the Act provides as follows:

“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.”

Directions

[6] In response to the application to terminate the Agreement, Directions were issued for the filing of material in reference to s.226 of the Act.

[7] The Directions note that “the Applicant must bring the application, and these Directions, and the effect of the termination (including a comparison of wages) to the attention of employees covered by the Agreement by either providing copies of both to each employee or placing each in a prominent place at the workplace, ordinarily seen by employees. 2“ The Directions required evidence of compliance with the instructions. The Parties filed materials in accordance with these Directions.

Standing to make the application

[8] The Applicant was employed by CSO Australia Pty Ltd at the time of the filing of the application; he subsequently left that employment. He was employed as a security officer on a casual basis, at a Griffith University campus. He commenced that employment in 2012.

[9] Whilst Mr Hardacre was no longer an employee of CSO Australia, the decision of Deputy President Bull in Ms Lorena Menchon and Landrex Pty Ltd 3 addressed circumstances where an employee bringing an application to terminate an agreement is subsequently no longer employed under the Agreement in question, and provided as follows:

“[15] As the preconditions of s.225 were met at the time of application i.e. the Agreement had exceeded its nominal expiry date; the applicant Ms Menchon, was an employee at the time of application and covered by the Agreement, Ms Menchon had standing to make the application. The fact that she is no longer an employee cannot detract from the validity of the application when made. Once an application has been validly made the Commission has an obligation to determine the matter under s.226 of the Act. As Ms Menchon is no longer an employee then her views under s.226(b) are not a consideration.”

Consideration

[10] The matter was listed for hearing before the Commission on 8 March 2017. The Applicant was represented by Mr Reed of Counsel instructed by Mr Peverill of United Voice. The Respondent was represented by Mr Green of Counsel instructed by Mr Venardos of Ferguson Cannon Lawyers.

[11] At the Hearing the parties tendered the following consent position:

“Agreed Facts – Termination of CSO Agreement : AG2016/3585

The agreed facts:

1. The matter before the Commission is an application to terminate the CSO Australia Security Pty Ltd Collective Agreement 2008 (the CSO Agreement) under Item 16 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act).

2. That provision of the Transitional Act applies the provisions of Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (FW Act) (ss. 225-227) to the application for termination.

3. On Monday 20 June 2016, United Voice (‘the Union”) filed on behalf of Mr Hardacre an application to terminate the CSO Agreement, signed and dated 18 June 2016, accompanied by a Form 24C – Statutory Declaration of Kiean James Hardacre.

4. The parties to the application filed submissions to the Commission.

5. The material provided to the Commission incorporates the views of employees CSO Australia Security and CSO Australia Security Pty Ltd.

6. The matter was listed for hearing before Commissioner Spencer on Wednesday, 8 March 2017. Prior to the commencement of the hearing, the parties entered into discussions which resulted in a consent position with respect to the application to terminate the agreement.

7. The parties have consented to the CSO Australia Security Pty Ltd Collective Agreement 2008 being terminated pursuant to section 226 of the FW Act, and that, pursuant to section 227, the termination should take effect on and from 31 July 2017.

8. The modern award which would apply to the relevant employees of CSO Australia Security Pty Ltd ( the CSO employees) if the CSO Agreement was terminated is the Security Services Industry Award 2010 (the Award).

9. The parties agree that:

a) once an enterprise agreement is made and approved by the Commission, the legislative scheme does not intend that such agreements operate in perpetuity;

b) the statute guarantees the continuation of the safety net, not the terms and conditions contained in a nominally expired enterprise agreement.

c) termination of the CSO Agreement is not contrary to the public interest.

10. The CSO Agreement was approved more than eight years ago under a prior legislative scheme that did not require such an agreement to be scrutinised by the Commission. The CSO Agreement is outdated and reflects an outmoded scheme of regulation of workplace agreements.

11. The Award, together with the NES, sets out the minimum safety net of wages and conditions which ought to apply across the security industry. Many of the terms and conditions in the CSO Agreement fall below that minimum safety net, some by a significant margin.

12. The parties agree that there are no matters of public interest which would cause the Commission not to terminate the CSO Agreement and that the public interest is positively served by the termination of the CSO Agreement.

13. Matters affecting the public interest in this case include the achievement of the object of the Act, including by the maintenance of proper industrial standards.

14. The need to ensure that the CSO employees receive fair minimum safety net conditions is an important factor in favour of terminating the Agreement.

15. The interests of other employers in the security industry who do accord their employees the minimum conditions contained in the Award, or better, should not be subjected to competitive disadvantage by the continuing operation of expired sub-standard agreements.

16. There is a public interest in the maintenance of fair minimum safety net conditions in the industry and the termination of the CSO Agreement would be in the public interest.

17. It is appropriate to terminate the agreement taking into account all the relevant circumstances.”

Conclusion

[12] In accordance with the consent position of the parties, a separate Order will issue reflecting that position, with the termination of the Agreement pursuant to s.226 and s.227 to be effective on 31 July 2017.

COMMISSIONER

 1   AE879333

 2   Directions dated 27 June 2015.

 3   [2015] FWCA 8679 at [15].

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