Mr Ramesh Rathee

[2014] FWCA 3059

[2014] FWCA 3059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Mr Ramesh Rathee
(AG2014/3798)

LOCKDOWN SECURITY SERVICES ENTERPRISE AGREEMENT 2009

Security services
COMMISSIONER HAMPTON	ADELAIDE, 9 MAY 2014

Application for termination of the Lockdown Security Services Enterprise Agreement 2009.

[1] This decision concerns an application by Ramesh Rathee pursuant to s 225 of the Fair Work Act 2009 (the FW Act) that seeks to terminate the Lockdown Security Services Enterprise Agreement 2009. The Agreement is an enterprise agreement made and approved under the FW Act during the bridging period 1 as defined in the Fair Work (Transitional and Consequential Amendments) Act 2009. It has a nominal expiry date of 23 February 2014.

[2] The Agreement applies to security services operations conducted by Pratt Pty Ltd T/as Lockdown Security Services (Lockdown) and Mr Rathee is an employee of Lockdown covered by the Agreement.

[3] The FW Act relevantly 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.

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.”

[4] I have considered this matter based upon the extensive materials provided by Mr Rathee and Ms Sexton, of Business SA on behalf of Lockdown. Further, I have also had regard to the position advanced by Ms Harrison and later Mr Thompson of United Voice who appeared in the matter on behalf of its members at Lockdown.

[5] Ultimately, following discussions conducted with the assistance of the Commission, all parties agreed that the application should be granted with some lead time to enable Lockdown, its employees and United Voice to deal with the consequences of the termination of the Agreement.

[6] The applicant is entitled to apply for the termination of the Agreement pursuant to s.225 of the FW Act. The Agreement has also passed its nominal expiry date.

[7] In terms of the considerations raised by s.226(b) of the FW Act, I accept that there are employees who are presently subject to the Agreement and support its termination. United Voice, as a representative of some of the employees, also supports the termination.

[8] Lockdown now also supports the termination.

[9] The employment of the employees will fall back to the coverage and application of the Security Services Industry Award 2010. 2 There are some significant differences between the Agreement and that modern award. These include a different balance between base rates and penalty rates and a different approach to the treatment of part-time and casual employees. On balance, these differences mean that it is appropriate to terminate the Agreement but only after providing a period of time to permit further discussions between the parties, and if necessary, operational and pricing changes for the Lockdown operations.

[10] Given these findings, I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances of the employees and the employer.

[11] In terms of the date of effect, I consider that a date to coincide with the first pay period in the next financial year as agreed between the parties is appropriate. This will provide the necessary lead time and coincide with the end of the transitional arrangements in the modern award and the likely date of any adjustments to the modern award arising from the Annual Wage Review.

[12] The termination will take effect on and from Midnight on 6 July 2014.

 1   Item 2, Part 1 of Schedule 2.

 2   MA000016

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