MSS Security Pty Ltd

[2018] FWCA 3781

[2018] FWCA 3781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

MSS Security Pty Ltd
(AG2018/2311)

MSS SECURITY PTY LIMITED - UNITED VOICE COLLIE/BLUEWATER POWER STATIONS ENTERPRISE AGREEMENT 2015

Security services
DEPUTY PRESIDENT BINET	PERTH, 6 JULY 2018

Application for termination of the MSS Security Pty Limited - United Voice Collie/Bluewater Power Stations Enterprise Agreement 2015.

[1] MSS Security Pty Limited (MSS Security)has applied (Application) for the MSS Security Pty Limited - United Voice Collie/Bluewater Power Stations Enterprise Agreement 2015 (Agreement) to be terminated pursuant to section 225 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 8 May 2018.

[3] The parties to the Agreement are MSS and employees employed by MSS Security in the classification of Industrial Paramedic Security Officer to perform duties at the Collie and Bluewater Power Stations (Employees).

[4] The Agreement covers United Voice.

[5] Section 225 of the FW Act states:

“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.”

[6] 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.”

[7] In support of the Application, MSS Security filed a Statutory Declaration by Ms Stefania Papalia, Human Resources/Industrial Relations Manager at MSS (Papalia Declaration), which states that MSS Security has lost the relevant contract with the client for the sites which the Agreement covers, and as a consequence, no Employees have been covered by the Agreement since 1 February 2018.

[8] MSS Security was directed to provide a copy of the Application, the Papalia Declaration and Directions issued by my Chambers to United Voice by 14 June 2018.

[9] In its outline of submissions, United Voice state that they understand that MSS Security has lost the relevant contract with the client at the Bluewater site, but continues to employ employees at the Collie Power Station. However, according to United Voice MSS Security employees employed at the Collie site no longer perform industrial paramedic security duties and perform security duties only.

[10] Further United Voice agree that no employees are covered by the Agreement, and that to their knowledge, termination of the Agreement would not have any effect on United Voice or any MSS Security employee.

Consideration

[11] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[12] United Voice support the application to terminate the Agreement and submit it is not contrary to the public interest to terminate the Agreement.

[13] Based on the material contained in the Papalia Declaration filed with the Application, and the subsequent materials filed in accordance with the directions issued on 8 June 2018, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the agreement.

[14] No opposition to the Application was received for, or on behalf, of any employees or the organisation entitled to represent them.

[15] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in subsections 226(b)(i) and (ii) of the Act, the Agreement is terminated.

[16] The termination will come into effect from 6 July 2018

DEPUTY PRESIDENT

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