MSS Security Pty Ltd

[2015] FWC 6417

[2015] FWC 6417

FAIR WORK COMMISSION

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

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