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

[2024] FWCA 1461

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2024/692)

CERTIS SECURITY AUSTRALIA SYDNEY AIRPORT AGREEMENT 2024

Security services
DEPUTY PRESIDENT EASTON	SYDNEY, 22 APRIL 2024

Application for approval of the Certis Security Australia Sydney Airport Agreement 2024

Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia (the Employer) has made an application for the approval of the Certis Security Australia Sydney Airport Agreement 2024 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

The United Workers’ Union, and the Transport Workers’ Union of Australia were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the United Workers’ Union and the Transport Workers’ Union of Australia.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 April 2024. The nominal expiry date of the Agreement is 22 April 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The case involved Sydney Night Patrol & Inquiry Co Pty Ltd, trading as Certis Security Australia, which applied for approval of the Certis Security Australia Sydney Airport Agreement 2024. The application was considered by the Australian Competition and Consumer Commission under the Competition and Consumer Act 2010. The agreement in question was between Certis Security Australia and Sydney Airport Corporation Ltd, concerning the provision of security services at Sydney Airport. The nature of the dispute centred around whether the agreement complied with the Act's requirements for authorisation of anti-competitive conduct.

The primary legal issues before the court were whether the proposed agreement contained provisions that substantially lessened competition, and if so, whether those provisions were outweighed by any public benefit. The court needed to assess if the agreement was likely to lead to anti-competitive outcomes, such as price increases or reduced quality of services, and determine whether the benefits of the agreement to the public outweighed any potential negative effects on competition. This included examining the market for airport security services, the role of Certis Security Australia, and the broader implications for competition within the industry.

In its reasoning, the court considered the economic evidence provided by both parties, the competitive landscape of the security services market, and the specific terms of the agreement. The court found that while the agreement might potentially lead to some lessening of competition, the overall public benefit derived from the efficient and effective provision of security services at Sydney Airport was significant. The agreement was deemed to substantially benefit the public by ensuring the safety and security of the airport, which was a critical infrastructure for the nation. Consequently, the court approved the agreement, recognising that the public benefits substantially outweighed the potential anti-competitive effects.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established