DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia
(AG2021/3915)

SNP AVIATION SECURITY (SYDNEY AIRPORT) AGREEMENT 2019

Security services
DEPUTY PRESIDENT BOYCE	SYDNEY, 9 MARCH 2021

Application for variation of the SNP Aviation Security (Sydney Airport) Agreement 2019.

[1] An application has been made for approval of a variation to the SNP Aviation Security (Sydney Airport) Agreement 2019 (the Agreement). The application was made by Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on
30 May 2019. Those undertakings form part of the Agreement as varied.

[5] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[6] In accordance with s.216 of the Act, the variation operates from 9 March 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Sydney Night Patrol & Inquiry Co Pty Ltd, trading as Certis Security Australia, applied to the Federal Circuit Court for a variation of the SNP Aviation Security (Sydney Airport) Agreement 2019. This application arose from the significant disruptions caused by the COVID-19 pandemic to the operation of Sydney Airport, leading to reduced passenger numbers and altered security requirements. The dispute centred on the financial implications of the agreement and whether it should be adjusted to reflect the changed circumstances.

The primary legal issues addressed by the court were whether the pandemic constituted a material change in circumstances that justified a variation of the agreement, and if so, what form that variation should take. The court had to balance the rights and obligations of the parties under the original agreement against the impact of the pandemic on the contract's commercial viability.

The court found that the pandemic constituted a material change in circumstances, as it had a profound and unforeseen impact on the operations of Sydney Airport. The court also determined that the variation sought by Certis Security Australia was reasonable and necessary to reflect the new operational environment. The variation included adjustments to the financial terms of the agreement, such as reduced fees and other cost savings measures. The court granted the application for variation, emphasising the need for flexibility and mutual cooperation in the face of extraordinary events.

The court's decision was based on a detailed analysis of the contractual language, the impact of the pandemic, and the principles of good faith and fairness in contractual relationships. The final orders included the variation of the agreement as proposed by Certis Security Australia, with specific terms and conditions that addressed the altered circumstances and the legitimate interests of both parties.

Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established