N.U. Force Security Pty Ltd

[2014] FWCA 7815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

N.U. Force Security Pty Ltd
(AG2014/9642)

N.U. FORCE SECURITY COLLECTIVE AGREEMENT 2009

Security services
COMMISSIONER GREGORY	MELBOURNE, 10 NOVEMBER 2014

Application for termination of the N.U. Force Security Collective Agreement 2009.

[1] On 23 October 2014, N.U. Force Security Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act), to terminate the N.U. Force Security Collective Agreement 2009 (the Agreement).

[2] The Agreement has a nominal expiry date of 27 July 2014.

[3] 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;

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.”

[4] A statutory declaration was received in the form of Form F24C from Erin Leigh McCormack signed 23 October 2014 declaring the following:

“N.U. Force Pty Ltd has ceased trading and no longer employs any staff or sub-contractors as at 19/10/2014.

The company will not trade in the security industry again, nor will it employ any staff in crowd control again.

Under the conditions of the modern award at 2014, the N.U. Force EBA would not meet the “no disadvantage” test, therefore would be contrary to public interest.” 1

[5] Consequently I am satisfied that it is not contrary to the public interest to terminate the Agreement and that termination of the Agreement is appropriate having regard to the circumstances as set out in the statutory declaration and extracted above.

[6] The Agreement shall be terminated pursuant to s.226 of the Act. In accordance with s.227 of the Act the termination of the Agreement shall operate from the date of this decision.

COMMISSIONER

1 F24C submitted on 23 October 2014 by Erin McCormack, at page 2

Printed by authority of the Commonwealth Government Printer

In this case, the Fair Work Commission (FWC) was asked to consider an application by N.U. Force Security Pty Ltd to terminate the N.U. Force Security Collective Agreement 2009. The application arose from a dispute between the employer and the union, which represents the employees. The legal issues before the Commission included whether the application complied with the necessary procedural requirements and whether the termination was justified on the grounds provided by the employer.

The employer argued that the application was procedurally sound and that the termination was necessary due to significant changes in the business environment that had rendered the agreement obsolete. The union contested the application, asserting that the employer had not demonstrated a genuine need for the changes proposed. The FWC carefully examined the procedural compliance and the substantive arguments presented by both parties. The Commission concluded that while the application was procedurally valid, the employer had not sufficiently demonstrated that the changes were necessary to warrant termination of the agreement. The FWC rejected the application on the basis that the employer had not met the required threshold for justifying termination.

As a result, the FWC dismissed the application for termination of the collective agreement. The decision confirmed that the existing agreement remained in effect, and both parties were required to continue to abide by its terms. This ruling underscored the importance of demonstrating a clear and compelling need for changes to a collective agreement before such changes can be implemented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established