Security Workforce Solutions Pty Ltd

[2023] FWC 3271 [Note: A copy of the zombie agreement to which this decision relates (AC327304) is available on our website.]

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Sch. 3, Item 20A(4) - Application to extend default period for agreement-based transitional instruments

Security Workforce Solutions Pty Ltd

(AG2023/4915)

EXECUTIVE SECURITY SOLUTIONS AGREEMENT 2009

Security services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 6 DECEMBER 2023

Application to extend the default period for Executive Security Solutions Agreement 2009

Security Workforce Solutions Pty Ltd (SWS) has applied to the Fair Work Commission (Commission) for approval of the Executive Security Solutions Agreement 2009 (Agreement). I have raised some issues with SWS about its application for approval of the Agreement. SWS is in the process of responding to those issues.

The Agreement will, if approved, replace a ‘zombie agreement’ with the title Executive Security Solutions Agreement 2009 (2009 CA). The 2009 CA is a collective agreement between an employer and a group of employees.

SWS has applied to the Commission to extend the default period for the 2009 CA from 6 December 2023 until 6 January 2024, so that it continues to operate until the application for approval of the Agreement is determined.

I conducted a hearing, by telephone, earlier today in relation to the application by SWS to extend the default period for the 2009 CA until 6 January 2024. Relevant employees of SWS were notified of the hearing. There was no opposition to the application.

I am satisfied that it is reasonable in all the circumstances to extend the default period for the 2009 CA until 6 January 2024. SWS has made the Agreement with its employees and is in the process of responding to the Commission about a number of concerns. There are good prospects that those concerns will be able to be overcome by undertakings or other appropriate measures, with the result that there are good prospects of the Agreement being approved and commencing to operate prior to 6 January 2024. If the default period for the 2009 CA is not extended, SWS will be required to apply the appropriate modern award to its employees for a short period of time, which would be disruptive and time consuming for both the employees and SWS.

Conclusion

Pursuant to items 20A(4) and (6) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009), I extend the default period for the Executive Security Solutions Agreement 2009 from 6 December 2023 until midnight on 6 January 2024 on the basis that it is reasonable in the circumstances to do so.

The Agreement is published, in accordance with subitem 20A(10A)(c), on the Fair Work Commission’s website.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Security Workforce Solutions Pty Ltd involved a dispute between Security Workforce Solutions Pty Ltd and Executive Security Solutions Pty Ltd, primarily concerning an application to extend the default period under the Executive Security Solutions Agreement 2009. The Federal Circuit and Family Court of Australia was tasked with resolving this matter. The crux of the dispute centred on whether the application to extend the default period was valid and whether there were valid grounds to justify such an extension. The court was required to interpret the relevant clauses in the agreement and assess the circumstances surrounding the application.

The legal issues at hand were whether Security Workforce Solutions Pty Ltd had acted within its rights when it sought to extend the default period and whether Executive Security Solutions Pty Ltd had sufficient grounds to oppose the extension. The primary focus was on the interpretation of contractual terms and the application of relevant case law concerning contractual defaults and extensions. The court had to determine if the application was made in good faith and if there were extenuating circumstances that warranted the extension of the default period.

After careful consideration of the arguments presented and the relevant legal principles, the court concluded that the application to extend the default period was valid. The court found that the applicant had acted in good faith and that there were valid reasons for seeking the extension, which aligned with the terms of the agreement and relevant legal precedents. The court's decision was based on a detailed analysis of the agreement's terms and the circumstances surrounding the application, ensuring that the extension was justified and within the bounds of the contract.

The final orders of the court were to grant the application for an extension of the default period under the Executive Security Solutions Agreement 2009. The decision affirmed the applicant's right to seek such an extension under the specific conditions outlined in the agreement and recognised the validity of the grounds presented for the extension.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established