Trident Security (QLD) Pty Ltd

[2017] FWCA 3061

[2017] FWCA 3061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Trident Security (QLD) Pty Ltd
(AG2017/1550)

TRIDENT SECURITY (QLD) PTY LTD SECURITY OPERATIONS EMPLOYEE COLLECTIVE AGREEMENT 2008-2011

Security services
COMMISSIONER SPENCER	BRISBANE, 5 JUNE 2017

Application for termination of the Trident Security (QLD) Pty Ltd Security Operations Employee Collective Agreement 2008-2011.

[1] This Decision relates to an application filed by Trident Security (QLD) Pty Ltd (“the Employer”) on the 4 May 2017, pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Trident Security (QLD) Pty Ltd Security Operations Employee Collective Agreement 2008-2011 (“the Agreement”). The termination of the Agreement was sought on a consent basis with the employees.

Relevant Legislation

Subdivision C—Termination of enterprise agreements by employers and employees

219 Employers and employees may agree to terminate an enterprise agreement

Termination by employers and employees

(1) The following may jointly agree to terminate an enterprise agreement:

(a) if the agreement covers a single employer—the employer and the employees covered by the agreement; or

(b) if the agreement covers 2 or more employers—all of the employers and the employees covered by the agreement.

Note: For when a termination of an enterprise agreement is agreed to, see section 221.

Termination has no effect unless approved by the FWC

(2) A termination of an enterprise agreement has no effect unless it is approved by the FWC under section 223.

Limitation—greenfields agreement

(3) Subsection (1) applies to a greenfields agreement only if one or more of the persons who will be necessary for the normal conduct of the enterprise concerned and are covered by the agreement have been employed.

220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(b) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWC must approve the termination if:

(a) FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] Mr Donald Anthony Farley, Human Resources Manager of the Employer, provided a statutory declaration which outlined the process taken for the employees to approve the termination of the Agreement, relevant to s.220(2)(a). An “information email” was sent to all employee contract/work sites on 3 April 2017, explaining the proposed termination of the Agreement and providing a comparison summary of the major differences in entitlements received under the Agreementas compared to the Security Services Industry Award 2010 (the Award). A further ‘Ballot Pack’ was issued to each employee via post on 13 April 2017, which contained ballot instructions, the ballot paper and a return envelope.

[4] In respect of s.220(2)(b) and whether the employees were given a reasonable opportunity to decide whether they wanted to approve the termination, Mr Farley’s evidence was that in the months leading up to 3 April 2017, a United Voice representative, with the Employer’s approval, visited all of the Employer’s contract/work sites to conduct a meeting with employees to discuss the termination of the Agreement. Managers of the Employer had also visited contract/work sites weekly to discuss the Agreement termination with Employees.

[5] A ballot was conducted and of the 127 employees who were covered by the Agreement, 55 votes were cast. A majority of voters voted ‘yes’ to terminate the Agreement with 40 votes and 15 voters voted ‘no’. Accordingly the termination was agreed to by a majority in accordance with s.221(1).

[6] There are no other reasonable grounds for considering that the employees have not agreed to the termination. Upon termination of the Agreement, the employees will be covered by the Security Services Industry Award 2010.

[7] United Voice (the Union) is an employee organisation not covered by the Agreement but sought to appear at the conference as an interested party, given some of its members are employees of the Employer. The Union appeared as an interested party by consent of the Employer.

[8] The application was made within 14 days after the termination was agreed to. It is considered appropriate to approve the termination of the Agreement.

[9] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[10] In accordance with s.224 of the Act, the Decision to terminate will come into effect on the date of this decision. I Order accordingly.

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