DECISION

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

Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Mr Andrew May
(AG2016/6740)

Mr Francesco Theil-Harkin
(AG2015/7450)

Wilson Security Pty Ltd

(AG2016/7828)

Security services industry

DEPUTY PRESIDENT BINET

PERTH, 3 FEBRUARY 2017

Related applications for termination and transfer of the Wilson Security - Western Australia Collective Agreement - standing to be heard in respect of related applications.

[1] On 30 November 2015, Mr Francesco Theil-Harkin (Mr Theil-Harkin), in his capacity as an employee of Wilson Security Pty Ltd T/A Wilson Security (Wilson Security), made an application (Theil-Harkin Application) to the Fair Work Commission (FWC) to terminate the Wilson Security – Western Australia Collective Agreement 2009 (Agreement).

[2] The Agreement has a nominal expiry date of 30 June 2014. For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

[3] Section 226 of the FW Act states:

“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.”

[4] The Theil-Harkin Application was originally allocated to Commissioner Gregory in Melbourne who listed the matter for a conference on Monday, 8 February 2016. The matter was adjourned following the conference to allow Mr Theil-Harkin, Wilson Security and United Voice (in its capacity as the default bargaining representative), to commence bargaining for a replacement enterprise agreement. Seven negotiation meetings were held between 29 March 2016 and 21 June 2016 but no substantive progress was made towards agreeing a replacement enterprise agreement. United Voice then lodged a subsequent application for bargaining assistance on 22 June 2016, following which two conferences were held on 13 July 2016 and 5 September 2016 but again, no substantive progress was made.

[5] On 31 October 2016, Mr Andrew May (Mr May), in his capacity as an employee of Wilson Security, lodged a separate application (May Application) to terminate the Agreement which was allocated to me. Mr May listed United…

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.

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Details

Case: [2017] FWC 696
Decision Date: 3 FEBRUARY 2017

CaseChat Overview and Summary

Mr Andrew May, an employee of Wilson Security Australia, brought an application seeking to be heard in relation to several related applications concerning the termination and transfer of the Wilson Security - Western Australia Collective Agreement. The dispute was heard in the Fair Work Commission. The primary issue before the court was whether Mr May had standing to be heard in the related applications. The court had to determine if Mr May, as an employee of Wilson Security Australia, had a sufficient interest in the outcome of the applications to be considered a person directly affected by the decision.

The court examined the relevant provisions of the Fair Work Act and considered the principles of standing in industrial law. It found that Mr May had a sufficient connection to the collective agreement and the related applications. Given that the applications involved the termination and transfer of the collective agreement, Mr May, as an employee, had a direct interest in the outcome. The court concluded that Mr May's employment under the collective agreement and his potential impact from the changes provided him with standing to be heard. Consequently, the court ruled that Mr May had standing to participate in the proceedings related to the applications for termination and transfer of the collective agreement.

The decision allowed Mr May to be heard in the related applications concerning the Wilson Security - Western Australia Collective Agreement. The court's reasoning was based on the employee's direct interest in the outcome of the proceedings, stemming from their employment under the collective agreement. The court’s decision ensured that Mr May's concerns and interests would be considered in the determination of the applications.

Orders