MSS Security Pty Ltd

[2018] FWCA 4575

[2018] FWCA 4575

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

MSS Security Pty Ltd

(AG2018/3279)

Chubb British Aerospace Systems Greenfields Agreement - Alice Springs

Security services
Deputy President Beaumont	PERTH, 6 AUGUST 2018

Application for termination of the Chubb British Aerospace Systems Greenfields Agreement - Alice Springs.

1. On 19 July 2018, MSS Security Pty Ltd (Applicant) applied pursuant to Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) to terminate the Chubb British Aerospace Systems Greenfields Agreement – Alice Springs (Agreement) (Application).

1. The Agreement is a collective agreement-based transitional instrument to which Item 16 of Schedule 3 of the Transitional Act applies. The effect of Item 16 is that the termination of agreement provisions found in Subdivision D of Division 7 of the Fair Work Act 2009 (Cth) (the Act) applies to the Agreement as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

1. Sections 225 and 226 of the Act provide:

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.

1. The Agreement covers the operations of the Applicant at sites known as Harts Range and Mount Everard in Alice Springs. Mr Stefania Papalia, HR/IR Manager – WA/SA/NT of the Applicant (Mr Papalia), submitted a statutory declaration in support of the Application in which he outlined the Applicant ceased to provide services at these sites on 30 June 2013. Mr Papalia also submitted that there were no employees and no employee organisations covered by the Agreement.

1. The Agreement came into operation on 25 September 2007, and as per clause 5 of the Agreement, remained in operation until the end of the 5^th anniversary of the date on which the Agreement was lodged or at the cessation of Chubb Security Personnel’s association or contract with the sites covered by the Agreement. I am satisfied that the expiry date of the Agreement in accordance with this clause has passed.

1. Based on the material contained in the statutory declaration of the Applicant filed with the Application, I am satisfied that the termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement and an Order[1] to that effect is issued simultaneously with this decision.

DEPUTY PRESIDENT

[1] PR609701.

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<AC309785 PR609687>