Securecorp (SA) Pty Ltd

[2023] FWCA 1589

[2023] FWCA 1589

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument.

Securecorp (SA) Pty Ltd

(AG2023/1346)

SECURECORP (SA) WORKPLACE AGREEMENT

[AC302390]

Scientific services
COMMISSIONER PLATT	ADELAIDE, 1 JUNE 2023

Application for termination of the Securecorp (SA) Workplace Agreement.

1. The Fair Work Commission has received an application pursuant to item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act) from Securecorp (SA) Pty Ltd (Securecorp) to terminate the Securecorp (SA) Workplace Agreement (the Agreement).

1. Item 16 of Schedule 3 of the Transitional Act requires the Commission to deal with the application as if it is made under s.225 of the Fair Work Act 2009 (the Act).

1. Relevantly, s.226 of the Act, is as follows:

“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.”

1. On 16 May 2023, I issued Directions requiring the Applicant to provide a copy of the form F28 application (with attachments), statutory declaration and the Directions to each employee organisation (if any) and all employees covered by the Agreement.

1. On 17 May 2023, I received an email from the Applicant advising that the Directions had been complied with.

1. I have considered the information provided in the application by the Applicant pursuant to section 225 of the Act. This includes the Statutory Declaration by Harm Veerman, Managing Director of Securecorp (SA) Pty Ltd, dated 9 May 2023. Mr Harm makes the following submissions in relation to the approval of termination:

·   The Agreement passed its nominal expiry date.

·   Securecorp (SA) Pty Ltd has 39 employees covered by this Agreement.

·   The 39 employees covered by the Agreement have all been provided with written communications to advise them of the Company’s intention to terminate this Agreement after which all employees will derive their terms and conditions from the relevant modern award.  

·   The Award contains multiple conditions and entitlements that are more beneficial than that of the Agreement at which employees will be better off overall under the Award.

·   The communication contained a full comparison of conditions and entitlements under each instrument were provided and employees were provided with an opportunity to provide feedback to support or disagree with the termination of the Agreement. One employee provided feedback supporting the termination. No employees responded opposing the termination of the Agreement.

1. I conducted a conference in respect to this matter on 26 May 2023. Prior to the conference I did not received any objections from any of the relevant employees by email, nor did any employees attend the conference to voice an objection.

1. I am satisfied as to each of the matters contained in section 226 of the Act. I find that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the views of the employer and employees covered by the agreement and the effect that the termination will have upon them.

1. A copy of this decision must be served by the Applicant upon all employees previously covered by the Agreement.

1. In accordance with section 227 of the Act, the termination will come into effect on 1 June 2023.

COMMISSIONER

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<AC302390  PR762737>