Serco Citizen Services Pty Ltd

[2021] FWCA 416

[2021] FWCA 416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Serco Citizen Services Pty Ltd
(AG2020/4111)

SERCO GLOBAL SERVICES BURNIE EMPLOYMENT AGREEMENT 2013

Contract call centre industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 29 JANUARY 2021

Application for termination of the Serco Global Services Burnie Employment Agreement 2013

[1] Serco Citizen Services Pty Ltd (Serco Citizen Service) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Serco Global Services Burnie Employment Agreement 2013 (2013 Agreement). The 2013 Agreement is expressed to cover Serco Global Services Pty Ltd (Serco Global Service) and its employees who are covered by the classifications of work described in clause 14 of the Agreement, as well as the National Union of Workers (NUW). The nominal expiry date of the 2013 Agreement was 31 March 2017.

[2] Section 225 of the Act provides:

“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.”

[3] Section 226 of the Act provides:

“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.”

[4] The statutory declaration of Mr Matthew Schembri filed in support of the application states that there are no employees covered by the 2013 Agreement, and that it has been superseded by a new enterprise agreement, the Serco Citizen Services Burnie Employment Agreement 2017 (2017 Agreement), save that the 2017 Agreement does not cover the level 3 classification in the 2013 Agreement. The declaration states that the company does not currently employ level 3 employees. It further states that the company has no intention of employing such persons, but that if it did so, and the 2013 Agreement had been terminated, the employees in question would be covered by the Contract Call Centres Award 2020. The declaration states that the 2013 Agreement is outdated and that its termination would remove the risk of the agreement potentially applying to other positions similar to those at level 3 that were not intended to be covered by the instrument.

[5] I listed the application for mention on 29 January 2021. Serco Citizen Services confirmed that it is the entity previously known as Serco Global Services, and that, after the 2013 Agreement was made, the name of the company was changed. The UWU, the successor organisation to the NUW, advised that it does not oppose the application.

[6] In my view, it is doubtful whether the Commission can terminate an enterprise agreement that has been wholly superseded by a new agreement. Section 54(2) states that an enterprise agreement ceases to operate on the earlier of the following dates: the day on which a termination of the agreement comes into operation under section 224 or 227 (s 54(2)(a)); or the day on which s 58 first has the effect that there is no employee to whom the agreement applies (s 54(2)(b)). Section 58 provides that only one agreement can apply to a particular employee in relation to particular employment at a particular time, and that if an enterprise agreement applies to an employee, and a new enterprise agreement comes into operation and covers the employee in relation to the same employment, the new agreement will apply to the employee, provided that the nominal expiry date of the first agreement has passed. The first agreement then ceases to apply to the employee and can never apply to the employee again. In my opinion, if an enterprise agreement had already ceased to operate under s 54(2)(b), there would be no agreement left to terminate under s 225.

[7] However, in the present case, the 2017 Agreement does not cover the level 3 classification in the 2013 Agreement. Although the company does not presently employ any such employees, were it to do so, the employees would be covered by the 2013 Agreement. Therefore, the 2013 Agreement has not ceased to operate under s 54(2)(b), because it is not by operation of s 58 that there are no employees to whom the agreement applies, but instead because of a combination of the effect of s 58 and the fact that the company does not currently employ level 3 employees. The 2013 Agreement can therefore be the object of an application under s 225.

[8] There is nothing before me which raises public interest considerations that might militate against termination. Based on the material contained in the employer’s declaration filed with the application, and the submissions of the parties at the mention, I am satisfied that termination of the 2013 Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s 226(b)(i) and (ii), I am also satisfied that it is appropriate to approve the termination of the 2013 Agreement, and I do so.

[9] The termination will operate from the date of this decision.

DEPUTY PRESIDENT

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