Securecorp Vic Pty Ltd
[2023] FWCA 1167
•26 May 2023
| [2023] FWCA 1167 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument
Securecorp Vic Pty Ltd
(AG2023/980)
SECURECORP (VIC) WORKPLACE AGREEMENT 2007
| Security services and cleaning services | |
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 26 MAY 2023 |
Application for termination of the Securecorp (Vic) Workplace Agreement 2007
On 6 April 2023, Securecorp (Vic) Pty Ltd (the Applicant) made an application under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) to terminate the Securecorp (Vic) Workplace Agreement 2007 (the Agreement).
The application was supported by a statutory declaration of Mr Harm Veerman, Managing Director, which declared that:
· The Agreement has passed its nominal expiry date being 2012;
· The Applicant no longer employs employees under the Agreement;
· The Applicant currently has 43 employees covered by the Agreement (Affected Employees), with all other employees being covered by either the Security Services Industry Award 2020 or the Cleaning Services Award 2020 (relevant Awards);
· The Affected Employees received written communication advising them of the Applicant’s intention to terminate the Agreement and that their employment conditions would be derived from the relevant Awards;
· Employees were provided with a comprehensive comparison document outlining the conditions and entitlements between the relevant Awards and the Agreement; and
· No employees provided feedback opposing the termination.
On 19 April 2023, I directed the Applicant to send the Affected Employees a copy of the application and supporting declaration, along with the following correspondence:
“An application has been made by Securecorp (Vic) Pty Ltd to terminate the Securecorp (Vic) Workplace Agreement 2007.
The application will be decided by Deputy President O’Neill of the Fair Work Commission. In deciding whether to terminate the Agreement the Deputy President is required to take into account the views of employees covered by the Agreement.
If the application to terminate the Agreement is successful, your minimum employment entitlements will be regulated by the applicable modern award.
If you have any views about the application to terminate the Agreement, please advise the Deputy President by email at Chambers.O’[email protected] by no later than close of business Friday, 28 April 2023.”
On 24 April 2023, the Applicant provided a further statutory declaration of Mr Veerman, dated 21 April 2023, confirming the steps taken to distribute the above correspondence to the Affected Employees. The statutory declaration further set out the basis of the application, including that:
· The Applicant completed a comprehensive comparison of the conditions and allowances provided for in the relevant Awards which demonstrated that employees are significantly better off under the relevant Awards as both Awards contain entitlements not available under the Agreement;
· The continued operation of the Agreement would be unfair to employees covered as it does not align with the relevant Awards, contains conditions less favourable to the relevant Awards, is not competitive with the industry standard and does not align with rates and conditions received by other employees within the Applicant’s business; and
· The continued operation of the Agreement would position the Applicant as an uncompetitive employer within the industry.
Two employee views and submissions on behalf of the United Workers’ Union (UWU) were received by the Commission and are set out below.
United Workers Union
On 27 April 2023, the UWU filed submissions in support of the termination of the Agreement. The UWU is not covered by the Agreement although it has members who are, or previously were, engaged by the Applicant and perform work under the Agreement.
Mr Bemen Markoues
On 27 April 2023, Mr Bemen Markoues forwarded an application for the termination of the Agreement (Form F28) to the Commission. Mr Markoues was advised that an application for the termination of the Agreement had already been made by the employer, and asked to provide any views about whether the Agreement should be terminated. Following subsequent communication, Mr Markoues confirmed on 11 May 2023, that he had no views in relation to the application for termination of the Agreement. On the same day, Mr Tom Whiteside from the UWU advised that he had spoken to Mr Markoues, a member of the UWU, that day and had been asked to convey on his behalf that Mr Markoues supported the termination of the Agreement.
Mr Gary Barbour
On 27 April 2023, my chambers were copied into correspondence from Mr Gary Barbour requesting further information from the Applicant regarding the application for termination of the Agreement. Various emails were exchanged between the Applicant and Mr Barbour regarding the termination of the Agreement.
On 4 May 2023, my chambers requested that Mr Barbour advise whether he opposed the termination of the Agreement by no later than 4:00pm 5 May 2023. No response was received by Mr Barbour by this date.
A further email was forwarded to Mr Barbour on 8 May 2023, confirming that my chambers had not received a response and advising that unless an objection is received by Mr Barbour by 5:00pm, I would determine the matter on the material currently before the Commission. No further correspondence was received from Mr Barbour.
Ultimately, none of the Affected Employees communicated or maintained any objection to the termination of the Agreement.
Legislative provisions
The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Transitional Act apply. The effect of Items 15 and 16 is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Fair Work Act 2009 (the Act) apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.
Section 225 of the Act enables an employer, employee or employee organisation covered by an agreement to apply to the Commission for the termination of an agreement provided the agreement has passed its nominal expiry date.
Section 226 of the Act provides:
“226 Terminating an enterprise agreement after its nominal expiry date
(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b)the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c)all of the following apply:
(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2)This subsection covers a termination of the employment of an employee:
(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a)the employees (unless there are no employees covered by the agreement);
(b)each employer;
(c)each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b)whether bargaining for the proposed enterprise agreement is occurring; and
(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”
Consideration
I am satisfied that the Agreement has passed its nominal expiry date in 2012[1] and that the Applicant has standing to make this application.
I am satisfied that the continued operation of the Agreement would be unfair to employees. The Agreement was made in 2007 and contains an outdated set of entitlements which do not align with current industry standards and provides conditions of employment which are significantly less beneficial than the relevant Awards.
The Applicant is the sole employer covered by the Agreement and supports the termination. Ultimately, no employees indicated that they opposed the application. There are no employee organisations covered by the Agreement. Section 226(4) is not a relevant consideration in this matter.
While I am not expressly required to consider the views of the UWU as it is not an organisation covered by the Agreement, I have taken the UWU’s support for the termination of the Agreement and their submissions into account as a relevant matter which I may have regard to under s.226(5).
Having regard to the matters I am required to consider under s.226 of the Act, I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.
The termination will operate from the date of this decision.
An order giving effect to this decision will be separately issued.
DEPUTY PRESIDENT
[1] Cl 5.2 of the Agreement.
Printed by authority of the Commonwealth Government Printer
<AC304708 PR761343>
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