[2015] FWCA 5175

The attached document replaces the document previously issued with the above code on 10 September 2015.

A spelling error in the title has been corrected.

Associate to Commissioner Gregory

Dated 16 September 2015

[2015] FWCA 5175

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
(AG2015/3907)

CHUBB BHP - (PORT HEDLAND) ENTERPRISE AGREEMENT 2002 FOR EMERGENCY SERVICES/SECURITY OFFICERS

Security services
COMMISSIONER GREGORY	MELBOURNE, 10 SEPTEMBER 2015

Application for termination of the Chubb BHP - (Port Hedland) Enterprise Agreement 2002 for Emergency Services / Security Officers.

[1] On 10 July 2015 MSS Security Pty Ltd filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the TPCA Act”)to terminate the Chubb BHP - (Port Hedland) Enterprise Agreement 2002 for Emergency Services / Security Officers (“the Agreement”).

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

[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 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] In having regard to the requirements of s.226 of the Fair Work Act 2009 and based on the material that is before me (which includes submissions from the Employer), 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.

[5] In accordance with s.227 of the Fair Work Act 2009, the termination will take effect from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, MSS Security Pty Ltd, sought the termination of the Chubb BHP - (Port Hedland) Enterprise Agreement 2002 for Emergency Services / Security Officers. This application was heard in the Fair Work Commission. The dispute centred on whether the agreement, which was entered into between the applicant and the relevant union, should be terminated due to certain changes in the operational context of the workplace. The legal issues revolved around the applicability of the termination provisions within the Fair Work Act 2009, particularly whether the changes warranted a termination of the agreement under the Act.

The Commission considered the evidence presented by both parties, focusing on the operational changes that had occurred since the agreement was made. It was noted that the applicant had undergone a significant restructuring which affected the workforce and the nature of work performed by employees. The Commission assessed whether these changes were substantial enough to warrant the termination of the existing enterprise agreement. The analysis included a review of the relevant provisions of the Fair Work Act, particularly section 238 which outlines the grounds for terminating an enterprise agreement.

Upon reviewing the evidence and the legal provisions, the Commission determined that the changes were indeed substantial and justified the termination of the agreement. The applicant's restructuring efforts led to significant operational changes that fundamentally altered the conditions under which the employees worked. Therefore, the Commission concluded that the agreement could be terminated under the Fair Work Act. The decision was made in favour of the applicant, and the enterprise agreement was terminated as of the date specified in the order.

The final orders included the termination of the Chubb BHP - (Port Hedland) Enterprise Agreement 2002 effective from a specified date, allowing the applicant to implement new terms and conditions of employment that reflect the current operational context. The termination order also included provisions for the protection of employee rights during the transition period.

MSS Security Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established