Rapid Response Security Pty Ltd

[2016] FWCA 6052

[2016] FWCA 6052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Rapid Response Security Pty Ltd
(AG2015/4493)

RAPID RESPONSE SECURITY ENTERPRISE AGREEMENT 2013

Security services
COMMISSIONER GREGORY	MELBOURNE, 25 AUGUST 2016

Application for termination of the Rapid Response Security Enterprise Agreement 2013.

[1] On 1 September 2015 Rapid Response Security Pty ltd (“the Applicant”) made application under s.222 of the Fair Work Act 2009 (Cth) (“the Act”) to terminate the Rapid Response Security Enterprise Agreement 2013 (“the Agreement”). That Agreement was approved in a decision of the Commission handed down on 16 September 2013 and it commenced operation 7 days later. The nominal expiry date of the Agreement is 22 September 2017.

[2] Section 222 of the Act states that an application to terminate an enterprise agreement must also be accompanied by the requisite Statutory Declaration. In this case the Declaration has been made by Mr Mandeep Sachdeva, a Director of the Applicant. It was declared in Victoria on 31 August 2015.

[3] Section 223 continues to deal with the circumstances in which the Commission must approve the termination of an enterprise agreement following an application made under section 222. It states:

“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.”

[1] I now turn to consider whether the Commission can be satisfied that the various requirements contained in s.223 have been satisfied.

[2] The Declaration made by Mr Sachdeva states that four employees were covered by the Agreement at the time the application was made. It also states that those employees were provided with a document entitled “Voting – How and When Termination of EA Rapid Response” on 27 July 2015. A copy of that document was subsequently provided to the Commission. It indicates that the employees were provided with the option of either mailing their voting slip to a designated address, or emailing their response to the nominated employer representative. The document also indicates that, “At the conclusion of the voting period, all votes will be counted by the Employee Representative, Saboor Arqum Sikander.”

[3] Mr Sachdeva’s Declaration also states that the notice provided details about when a vote to terminate the Agreement would be held, and the method of voting that was proposed to be utilised. The Declaration continues to indicate that the ballot then commenced on 20 August 2015 and concluded 4 days later. It also indicates that each of the four employees participated in the voting process, and all of those employees voted in favour of the existing Agreement being terminated.

[4] The Applicant’s representative, Mr David Price, also advised that all of the employees were provided with a further written explanation about why it was proposed that the Agreement be terminated. That document indicates in part:

“Rapid Response Security has made the decision to request all employees covered by the 2013 Enterprise Agreement to approve a termination of this Agreement through a vote. The need to terminate the Agreement has been prompted due to changing demands from our clients and the possibility of client contracts being terminated due to uncompetitive rates, which could mean potential losses of jobs.

By voting to terminate the Agreement, we will be taking a step to ensure the longevity of Rapid Response in the highly competitive security industry.

If the termination is agreed to by the majority of employees, Rapid Response will operate under the relevant modern Award or there will be the opportunity to negotiate a new Enterprise Agreement.

Base rate of pay

Our clients have stated our base rate of pay under the current Agreement is unsustainable due to it being significantly higher than the relevant Award and what other companies are tendering.”

[5] The document then continued to set out the base rates of pay applicable under the current Agreement, as well as those contained in the Security Services Industry Award 2010. The document concluded by stating:

“If we agree to terminate the Agreement, Rapid Response employees will be paid according to the Award. While this is a lower base rate of pay, it ensures that our clients want to keep engaging us and will not terminate the contract due to our rates being unsustainable.”

[6] In coming to a decision in this matter I have had particular regard to the details set out in the Declaration made by Mr Sachdeva. I am satisfied in response that the employees covered by the Agreement, were provided with details about the timing and the voting method to be used, in considering whether to terminate the existing Agreement. I am also satisfied that the employees were provided with sufficient time and enough information to give them a reasonable opportunity to decide in the ballot whether they wanted to approve the proposed termination. I am also satisfied that the termination has been agreed to by a majority of the employees casting a valid vote to approve the termination.

[7] I am also not aware of any other grounds for believing that the employees have not agreed to the termination. It is also noted that there are no employee organisation(s) covered by the existing Agreement.

[8] I am therefore satisfied that it is appropriate to terminate the Agreement. The consequence of the Agreement being terminated is that the employees, who were previously covered by the Agreement, will now be covered by all of the terms and conditions contained in the Security Services Industry Award 2010, unless and until another Agreement is established and approved by the Commission in place of the terminated Agreement. In accordance with s.224 of the Act the termination of the Rapid Response Security Enterprise Agreement 2013 will come into effect from the date of this decision.

COMMISSIONER

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