DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Prosek Security Pty Ltd
(AG2019/1949)

PROSEK SECURITY COLLECTIVE AGREEMENT 2009

Security Industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 28 AUGUST 2019

Application for termination of the Prosek Security Collective Agreement 2009.

[1] On 10 June 2019, Prosek Security Pty Ltd (the Applicant) made an application to terminate the Prosek Security Collective Agreement 2009 (the Agreement) under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act). The Applicant seeks to terminate the Agreement, the effect of which will be that the Security Services Industry Award 2010 (the Award) will apply.

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (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. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] I have considered each of the matters contained in s.226 of the Act, and I am satisfied that the Agreement should be terminated. In particular I have had regard to the fact that the Agreement was made in 2009 prior to the operation of the Award. I have also had regard to the fact that the Agreement terms are less favourable than those in the Award and that if the Agreement is terminated the Award will apply, to the benefit of employees.

[4] Correspondence was also received from Mr Simon Ong, Industrial Officer of United Voice stating that United Voice had members who are covered by the Agreement and confirming United Voice supported the termination of the Agreement.

[5] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Prosek Security Pty Ltd was the applicant in a case before the Fair Work Commission, seeking the termination of the Prosek Security Collective Agreement 2009. The applicant argued that the agreement was no longer appropriate due to significant changes in the business environment and workforce composition. The applicant sought to replace the existing agreement with a new agreement that would better reflect the current operational needs and the nature of the workforce.

The primary legal issues before the Commission were whether the changes in the business environment and workforce warranted the termination of the existing agreement and whether the proposed new agreement would provide adequate protections for the employees. The Commission had to consider the relevance and impact of the changes on the terms and conditions of employment as well as the procedural fairness in the process of transitioning to a new agreement. The applicant's burden was to demonstrate that the existing agreement was no longer suitable and that the proposed new agreement was fair and reasonable.

The Commission found that the changes in the business environment and workforce composition were substantial and justified the termination of the existing agreement. The Commission also found that the proposed new agreement provided adequate protections for the employees, taking into account the nature of the changes and the need for flexibility in the terms and conditions of employment. The Commission considered the procedural fairness of the process and concluded that the applicant had adequately consulted with the employees and their representatives. The Commission decided in favour of the applicant and terminated the Prosek Security Collective Agreement 2009, allowing for the implementation of the new agreement.

The Fair Work Commission ordered the termination of the Prosek Security Collective Agreement 2009, effective from the date of the decision. The Commission also approved the new agreement, which would now govern the terms and conditions of employment for the relevant employees. The decision provided clarity on the process for terminating and replacing a collective agreement in the context of significant business and workforce changes.

Prosek 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