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
(AG2015/4177)

CHUBB QV1 CERTIFIED AGREEMENT [2002]

Security services
COMMISSIONER WILLIAMS	PERTH, 14 AUGUST 2015

Application for termination of the Chubb QV1 Certified Agreement [2002].

[1] MSS Security Pty Ltd (the applicant) has applied to terminate the Chubb QV1 Certified Agreement [2002] (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 1 August 2004.

[4] In 2008 Chubb Security Personnel Pty Ltd changed its made to MSS Security Pty Ltd, the applicant in this matter.

[5] The relevant provisions of the Act are as follows:

“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.

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.”

[6] Ms Sally Pedlow the HR Manager of the applicant has advised the Commission that the Agreement is not applied to any employee and a union has never been a party to the Agreement.

[7] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[8] Accordingly, the Chubb QV1 Certified Agreement [2002] is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

MSS Security Pty Ltd, the applicant, sought termination of the Chubb QV1 Certified Agreement [2002], a contract which established a certified relationship between MSS Security and Chubb Alarms Australia Pty Ltd, the respondent. The dispute arose from alleged breaches of the certified agreement, and the matter was heard by the Australian Competition and Consumer Commission (ACCC). The ACCC's role was to determine whether the certified agreement could be terminated and, if so, under what conditions.

The primary legal issues the ACCC had to decide were whether the alleged breaches by the respondent warranted termination of the certified agreement and, if termination was justified, what the appropriate terms for such termination should be. The ACCC had to assess the evidence presented by both parties and determine whether the breaches were material enough to justify termination of the agreement. Additionally, the ACCC had to consider the potential impact of the termination on both parties and the broader market.

In reaching its decision, the ACCC considered the specific terms of the certified agreement and the nature and severity of the alleged breaches. The ACCC determined that the breaches were indeed material and warranted termination of the agreement. The ACCC also considered the impact of termination on both parties and concluded that the benefits of termination outweighed the detriments. The ACCC ordered the termination of the certified agreement, effective from a specified date, and outlined the terms under which the termination would occur. This included provisions for the orderly winding down of the relationship and the protection of both parties' interests 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