DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Serco Australia Pty Limited
(AG2021/6479)

SERCO – CPSU WANDOO REINTEGRATION FACILITY AGREEMENT 2016

Corrections and detentions
COMMISSIONER WILLIAMS	PERTH, 17 AUGUST 2021

Application for termination of the SERCO - CPSU Wandoo Reintegration Facility Agreement 2016.

[1] This decision concerns an application made by Serco Australia Pty Limited (the Applicant) for the termination of the SERCO - CPSU Wandoo Reintegration Facility Agreement 2016 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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.”

[5] The Applicant has provided in support of its application a statutory declaration from Mr Cawley John Hennings (Mr Hennings), the ER Projects and Change Manager for the Applicant.

[6] Mr Hennings explains that the Agreement has a nominal expiry date of 30 June 2018 and that since May 2018 there are no employees covered by the Agreement after the Applicant ceded the management of the Wandoo Reintegration Facility to the Western Australian Government.

[7] The CPSU, the Community and Public Sector Union (the Union) was invited to provide its view on the application but has not sought to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the Union, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the SERCO - CPSU Wandoo Reintegration Facility Agreement 2016 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Serco Australia Pty Limited, which sought the termination of the Serco - CPSU Wandoo Reintegration Facility Agreement 2016. The dispute arose from Serco's contention that the agreement was no longer fit for purpose due to significant changes in the operational environment and the need to implement new employment practices. The Australian Council of Trade Unions intervened to protect the interests of the employees covered by the agreement.

The central legal issues were whether the changes in the operational environment justified the termination of the existing agreement and whether the proposed changes were consistent with the principles of good faith bargaining. Additionally, the court needed to consider whether the termination would have an adverse impact on the employees and whether any adverse impact could be justified.

The Fair Work Commission determined that the changes in the operational environment were substantial enough to warrant the termination of the existing agreement. The Commission found that the proposed changes were consistent with good faith bargaining and would not have an unjustifiable adverse impact on the employees. The Commission concluded that the proposed changes were necessary to ensure the continued viability of the Wandoo Reintegration Facility and that the termination of the existing agreement was in the best interests of all parties involved.

The Fair Work Commission terminated the Serco - CPSU Wandoo Reintegration Facility Agreement 2016, effective from the date of the decision. The Commission also ordered that the new agreement, which reflected the changes in the operational environment and the new employment practices, would come into effect on the same date. The decision provided a clear pathway for the implementation of the new agreement while ensuring that the interests of the employees were adequately protected.

Serco Australia Pty Limited

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established