Securecorp (Tasmania) Pty Ltd

[2021] FWCA 1233

[2021] FWCA 1233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Securecorp (Tasmania) Pty Ltd
(AG2021/373)

SECURECORP (TASMANIA) WORKPLACE AGREEMENT 2009

Security Services
COMMISSIONER YILMAZ	MELBOURNE, 29 MARCH 2021

Application for termination of the SecureCorp (Tasmania) Workplace Agreement 2009.

[1] On 17 February 2021, SecureCorp (Tasmania) Pty Ltd (the Applicant) made an application pursuant to Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) to terminate the SecureCorp (Tasmania) Workplace Agreement 2009 (the Agreement).

[2] I note that this Agreement was approved by the former Workplace Authority under the Workplace Relations Act 1996 (WR Act). The Fair Work Act 2009 (Cth) (the Act) came into force and superseded the WR Act on 1 July 2009. According to s 352(1)(b) of the WR Act, the nominal expiry date of an enterprise agreement such as the Agreement, is no later than the fifth anniversary of the date the agreement was lodged. Therefore, the nominal expiry date of the Agreement has inevitably passed.

[3] 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 (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.

[4] The relevant provisions under Subdivision D of Division 7 of Part 2-4 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;

(c) an employee organisation 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.

[5] The application was supported by a statutory declaration by Mr Harrie Veerman, Managing Director of the Applicant.

[6] Mr Veerman stated that the termination of the Agreement is not contrary to the public interest. Rather, it favours the public interest because:

(a) it will bring staff in line with the conditions set out under the Security Services Industry Award 2020 (Award);

(b) a comparison conducted by the Applicant has shown that the pay, conditions and benefits in the Award are higher than those contained in the Agreement and therefore staff will be better off under the Award; and

(c) the Applicant believes moving employees to the Award will make a very positive impact to staff.

[7] The supporting documentation filed with the application detailed the consultation process between the Applicant with affected employees about the proposed termination of the Agreement. Specifically, on 3 February 2020 a letter was sent out to all employees which explained that the Agreement had passed its nominal expiry date and is now outdated. The letter further states that the Security Services Industry Award 2020 is the relevant Modern Industry Award for employees which contains conditions and benefits higher than the Agreement and should staff agree that the Agreement is terminated that the Award would apply. The letter provided a detailed comparison between the Agreement and the Award and confirmed that it intended to apply to the Commission to terminate the Agreement should employees vote in favour of its termination. The letter confirmed the process for employees during the consultation stage the process of a vote to ascertain whether employees agree to terminate the Agreement. The letter further referred employees to their manager of Human resources should they have further queries. A copy of each employee letter was provided to the Commission.

[8] The Applicant invited employees to participate in a vote which asked whether employees agree to terminate the Agreement. The declaration states that all 16 employees covered by the Agreement, were consulted regarding the application. The results of the vote show that 75% of employees took part in the vote, with 12 employees casting a valid vote. All 12 employees voted to support the termination of the Agreement and transition to the Award.

[9] In terms of the likely effect on the affected employees if the Agreement is terminated, Mr Veerman in his declaration deposed that:

‘employees will be better off overall by moving to the Award, they will in fact receive higher pay and better conditions in accordance with the Award including higher rates of pay (weekend rates, penalty rates, overtime rate and allowances). Staff will also be able to receive 17.5% leave loading which currently they do not under the Agreement. There are also more detailed consultation requirements under the award around major workplace change, changes to rosters and contracts which is currently not contained in the Agreement.’

[10] Overall, the Applicant considers the termination of agreement will ensure that employees will be better off overall by moving to the Award and that this will provide a positive impact to staff.

[11] On 4 March 2021, my chambers wrote to the Applicant seeking to confirm whether the Applicant is content for the application to be dealt with on the papers or whether a formal hearing is required. Further, I informed the Applicant that all affected employees should be given an opportunity to be heard if they so wish and the Applicant duly notified employees of this.

[12] On 4 March 2021, the Applicant wrote to my chambers and confirmed that the Applicant was content for the application to be dealt with on the papers and confirmed that staff were informed of the opportunity to be heard should they wish. No staff contacted the Commission seeking to be heard in regards to the application.

[13] Having considered the material contained in the employer’s statutory declaration set out above and the further information and materials provided to the Commission, I am satisfied that termination of the Agreement is not contrary to the public interest. I have taken into account all of the circumstances including those specified in s.226(b) and consider that it is appropriate to terminate the Agreement. Accordingly, I approve the termination of the Agreement.

[14] The termination will come into effect from 29 March 2021.

COMMISSIONER

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