Serco Defence Clothing Pty Ltd
[2020] FWCA 4728
•6 OCTOBER 2020
| [2020] FWCA 4728 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date
Serco Defence Clothing Pty Ltd
(AG2020/2538)
SERCO SODEXO DEFENCE SERVICES PTY LTD NATIONAL CLOTHING STORES ENTERPRISE AGREEMENT 2016
Retail industry | |
DEPUTY PRESIDENT BULL | SYDNEY, 6 OCTOBER 2020 |
Application for termination of the Serco Sodexo Defence Services Pty Ltd National Clothing Stores Enterprise Agreement 2016 – Application terminated.
[1] On 26 August 2020, an application was made pursuant to s.225 of the Fair Work Act 2009 (the Act) for the termination of the Serco Sodexo Defence Services Pty Ltd National Clothing Stores Enterprise Agreement 2016 1(the Agreement). The application was made by Serco Australia Pty Ltd T/A Serco (Serco Australia).
[2] Section 225 of the Act states 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.”
(My underline)
[3] On 7 September 2020, the Commission wrote to Serco Australia noting that the Agreement states at clause 3.1 that ‘Serco Sodexo Defence Services Pty Ltd’ is the employer covered by the Agreement. Serco Australia was requested to advise how it can make the application to terminate the Agreement pursuant to s.225 of the Act when it is not a named employer under the Agreement.
[4] Serco Australia advised the Commission that Serco Sodexo Defence Services Pty Ltd is now registered as Serco Defence Clothing Pty Ltd, and provided an ASIC Company Summary extract record. Serco Australia further advised that this name change occurred post the approval of the Agreement and that Serco Defence Clothing Pty Ltd is a wholly owned subsidiary of Serco Australia.
[5] On 29 September 2020, Serco Australia requested that the named applicant be amended to ‘Serco Defence Clothing Pty Ltd’ being the current employer.
[6] I am satisfied that Serco Defence Clothing Pty Ltd is the correct employer covered by the Agreement and, as such, the name of the applicant to the application is amended pursuant to s.586(a) of the Act to read “Serco Defence Clothing Pty Ltd.”
[7] On this basis the applicant is the employer covered by the Agreement and thus has standing to make the termination application as per s.225 set out above.
[8] The Agreement has passed its nominal expiry date of 2 July 2019, as is a requirement under s.225 of the Act.
[9] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate an agreement is made.
“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.”
[10] The applicant’s application was accompanied by a Form F24C – Employer declaration declared by Mr Nicolas Saunders in which it was submitted that it is not contrary to the public interest for the Agreement to be terminated for the following reasons:
• There are no employees covered by the Agreement.
• The Agreement relates to work that was formerly performed by the employees of the applicant under a contract to provide uniform store services at Australian Defence Force bases nationally. This contract concluded in early 2019.
• All of the employees engaged under the Agreement were subsequently retrenched or redeployed to roles that fall outside the scope of the Agreement.
• There are now no employees engaged under the Agreement.
• Since the contract under which the applicant performed the work has concluded the company has no plans to engage any new employees in classifications covered by the Agreement.
• The applicant considers that termination of the Agreement is not inconsistent with the objects of the Act set out in section 3.
Public Interest
[11] For the reasons provided by the applicant, I am satisfied that it is not contrary to the public interest to terminate the Agreement.
Employee Views
[12] There are no employees covered by the Agreement
Views of the Union
[13] The Agreement covers the United Workers’ Union (UWU). 2 On 31 August 2020, the Commission wrote to the UWU advising of the applicant’s application and requesting that, should the UWU wish to make any submissions concerning the application, it was to do so by no later than close of business 14 September 2020.
[14] On 1 September 2020, the UWU responded advising that it does not oppose the application to terminate the Agreement and, on this basis, the UWU does not intend to make any formal submissions in relation to the matter.
Effect of the termination
[15] It is submitted that termination of the Agreement would simplify the industrial arrangements of the applicant and that, as there are no employees covered by the Agreement, its termination would have no impact on employees.
[16] Pursuant to s.225 of the Act and having considered and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated.
[17] Pursuant to s.227 of the Act, the termination operates from the date of this Decision. An order (PR723337) will issue with this Decision.
DEPUTY PRESIDENT
1 AE421926
2 Formerly the National Union of Workers; see Agreement approval decision [2016] FWCA 7786 at [4] and clause 3.1(c) of the Agreement
Printed by authority of the Commonwealth Government Printer
<AE421926 PR722483>
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