DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

National Security Services Australia Pty Ltd
(AG2016/2697)

THE NATIONAL SECURITY SERVICES AUSTRALIA ENTERPRISE AGREEMENT 2012

Security services
DEPUTY PRESIDENT BINET	PERTH, 31 MAY 2016

Application for termination of The National Security Services Australia Enterprise Agreement 2012.

[1] On 1 April 2016, National Security Services Australia Pty Ltd (NSS) filed an application (Application) pursuant to s.222 of the Fair Work Act 2009 (FW Act) to terminate the National Security Services Australia Enterprise Agreement 2012 (Agreement).

[2] The Agreement is a single enterprise agreement with a nominal expiry date of 22 August 2016.

[3] There are no employee organisations covered by the Agreement.

[4] Section 223 of the FW Act sets out the conditions which must be met for an agreement to be terminated by the Fair Work Commission (FWC) pursuant to section 222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[5] Ms Kyla Jones, the Chief Operating Officer of NSS, has provided a statutory declaration confirming that NSS has complied with its obligations under subsection 220(2) and that a valid vote in support of the termination of the Agreement was cast by all three of the employees who are covered by the Agreement (Jones Statutory Declaration).

[6] On 27 April 2016 NSS were directed to provide a copy of the Application, the Jones Statutory Declaration and the Directions to all employees whose terms of employment are regulated by the Agreement (Directions). The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact the FWC by close of business on Friday 20 May 2016.

[7] On 4 May 2016 Ms Jones filed a statutory declaration confirming that a copy of the Application, Jones Statutory Declaration, Directions and the Agreement had been provided to all employees currently covered by the Agreement.

[8] No applications to be heard were received by any employees of NSS on or before close of business on Friday 20 May 2016.

[9] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that NSS has complied with its obligations under subsection 220(2), that the termination was agreed to in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the employees have not agreed to the termination. I therefore must approve the termination of the Agreement.

[10] The termination will come into effect on the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved National Security Services Australia Pty Ltd, which sought to terminate the 2012 Enterprise Agreement with its employees. The dispute was heard in the Fair Work Commission. The primary issue before the Commission was whether the employer had a genuine and sufficient reason to terminate the agreement under the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to consider if the employer could demonstrate that there were significant economic, technological, structural, or other changes that made the agreement unfair to the employer, or if the agreement had become redundant or obsolete.

The Commission considered the employer's evidence regarding changes in the business environment, staffing levels, and the nature of the work performed by the employees. It also examined the employees' arguments that the proposed changes would lead to a significant detriment to their conditions. The Commission weighed the evidence and concluded that while there were indeed changes in the business, these did not necessarily justify the termination of the agreement. The employer had not provided sufficient evidence to establish that the changes were of such magnitude that the agreement could no longer be considered fair and reasonable.

Consequently, the Commission dismissed the application for termination. The employer was required to continue to abide by the terms of the 2012 Enterprise Agreement. The Commission's decision highlighted the importance of demonstrating substantial and genuine changes in the business environment before seeking to terminate an enterprise agreement. The Commission's order effectively maintained the status quo, requiring the employer to continue operating under the existing agreement until further changes could be justified or a new agreement was negotiated.

National Security Services Australia Pty Ltd

DECISION

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Legal Principle Established