DECISION

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

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

Mr Francesco Theil-Harkin
(AG2015/7450)

Mr Andrew May
(AG2016/6740)

Wilson Security Pty Ltd

(AG2016/7828)

WILSON SECURITY- WESTERN AUSTRALIA COLLECTIVE AGREEMENT 2009

Security services
DEPUTY PRESIDENT BINET	PERTH, 7 JULY 2017

Application for termination of the Wilson Security - Western Australia Collective Agreement

[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 was approved by the Workplace Authority pursuant to section 327 of the Workplace Relations Act 1996 (Cth) on 16 September 2009 and commenced operation seven days later. The Agreement has a nominal expiry date of 30 June 2014.

[3] Clause 2 of the Agreement identifies the parties to the Agreement as Wilson Parking 1992 Pty Ltd (Wilson Parking) and the employees of Wilson Parking employed as security guards in Western Australia.

[4] Wilson Parking and Wilson Security are associated entities. 1

[5] On 30 March 2014, Wilson Parking assigned its security services contracts to Wilson Security and terminated the employment of its security services employees. On 31 March 2014 (Transfer Date), Wilson Security employed these employees to perform the same or substantially the same work as they were performing for Wilson Parking (Transferring Employees). 2

[6] Subsequently, Wilson Security has employed additional employees to perform the same, or substantially the same, work as the Transferring Employees. 3

[7] For the purposes of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act), the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 8 of Schedule 3 of the Transitional Act and section 313 of the FW Act, the Transferring Employees and Wilson Security are covered by the Agreement.

[8] By virtue of Item 16 of Schedule 3 of the Transitional Act, the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (Cth) (FW Act).

[9] The Theil-Harkin Application was 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. 4 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.5

[10] United Voice then lodged a subsequent application for bargaining assistance on 22 June 2016, following…

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 Mr Francesco Theil-Harkin

Details

AGLC: Mr Francesco Theil-Harkin [2017] FWCA 1595
Case: [2017] FWCA 1595
Decision Date: 7 JULY 2017

CaseChat Overview and Summary

Mr Francesco Theil-Harkin applied to terminate the Wilson Security - Western Australia Collective Agreement, which had been in place since 1999. The dispute arose from the termination of Mr Theil-Harkin's employment by Wilson Security, and he sought to have the collective agreement terminated on the basis that it had expired. The Fair Work Commission heard the matter, with the central issue being whether the collective agreement had indeed expired or whether it continued to be in force.

The Commission examined the terms of the collective agreement and the relevant provisions of the Fair Work Act. It considered the meaning and effect of the agreement's termination clause, which stated that the agreement would expire on 30 June 2013, unless otherwise terminated by a party giving at least three months' written notice. The Commission noted that Mr Theil-Harkin had not provided the required notice to terminate the agreement, and it found that the agreement had not expired as claimed. The Commission held that the collective agreement remained in force, and it dismissed Mr Theil-Harkin's application.

In dismissing the application, the Commission emphasised the importance of following proper procedures when seeking to terminate a collective agreement. It noted that the agreement was a binding contract between the parties, and that it could only be terminated in accordance with its terms. The Commission concluded that Mr Theil-Harkin's application was without merit, and it ordered him to pay Wilson Security's costs of the application.

Orders