DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

MSS Security Pty Ltd
(AG2015/3698)

Australian Capital Territory
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 6 OCTOBER 2015

Application for termination of the Chubb Protective Services and Liquor, Hospitality and Miscellaneous Union Australian Capital Territory Security Employees Certified Agreement 2004. Agreement terminated.

[1] On 26 June 2015 MSS Security Pty Ltd (MSS) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (TPCA Act)to terminate the Chubb Protective Services and Liquor, Hospitality and Miscellaneous Union, Australian Capital Territory Security Employees Certified Agreement 2004 1 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument which has passed its nominal expiry date of 17 May 2007.

[3] Item 16, Schedule 3 of the TPCA Act states that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the FW Act)applies to applications to terminate collective agreement-based transitional instruments that have passed their nominal expiry date. I am satisfied that the Agreement is a collective agreement-based transitional instrument and its nominal expiry date has passed.

[4] Section 226 of the FW Act relevantly provides:

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.”

[5] On 22 July 2015 MSS filed submissions in support of its application. In those submissions MSS contended, inter alia, that:

the Agreement references a pre-reform Award which contains terms that are contrary to the modern awards objective as set out in the FW Act;

MSS Security employees have been paid at wage rates at or above those in the Security Services Industry Award 2010 since January 2010; and

the Agreement is no longer applied to any employee working in the ACT.

[6] United Voice advised the Fair Work Commission (the Commission) by email on 3 July 2015 that it did not oppose the termination of the Agreement.

[7] The application was heard on 27 July 2015.

[8] Having regard to the requirements of s.226 of the FW Act and based on the material that is before the Commission, I am satisfied that:

it is not contrary to the public interest to terminate the Agreement; and

it is appropriate to terminate the agreement taking into account all the circumstances.

[9] In accordance with s.227 of the FW Act, the termination will take effect from the date of this decision.

Ms Martha Travis and Mr David Cheatham for the applicant.

Ms Erryn Cresshull for United Voice.

Hearing details:

2015.

Canberra:

July 27.

1 AG834228

Printed by authority of the Commonwealth Government Printer

MSS Security Pty Ltd applied to the Fair Work Commission for the termination of the Chubb Protective Services and Liquor, Hospitality and Miscellaneous Union Australian Capital Territory Security Employees Certified Agreement 2004. The applicant sought the termination of the agreement on the grounds that the conditions of termination were satisfied, and the termination would not be unfair or unreasonable. The respondents, the Liquor, Hospitality and Miscellaneous Union and the Liquor and Hospitality Division of the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application. The Commission was required to consider whether the agreement met the statutory criteria for termination and whether the termination would be fair and reasonable.

The Commission considered the statutory criteria for termination and whether they had been satisfied. The applicant argued that the agreement had not been in effect for the required period and that the conditions for termination had been met. The Commission found that the agreement had not been in effect for the required period and that the conditions for termination had been met. The Commission also considered whether the termination of the agreement would be fair and reasonable. The Commission found that the termination of the agreement would not be unfair or unreasonable.

Accordingly, the Commission terminated the agreement. The Fair Work Commission terminated the Chubb Protective Services and Liquor, Hospitality and Miscellaneous Union Australian Capital Territory Security Employees Certified Agreement 2004. The termination is effective from the date of the decision. The parties are free to negotiate a new agreement or apply to the Commission for the making of a new agreement. The termination of the agreement will not have any impact on the rights and obligations of the parties under any other agreement in force.

MSS Security Pty Ltd

DECISION

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Legal Principle Established