United Voice

[2018] FWCA 471

[2018] FWCA 471

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

United Voice
(AG2017/936)

BUILDING SERVICE CONTRACTORS ASSOCIATION OF AUSTRALIA - QUEENSLAND DIVISION, SECURITY OPERATIONS (EXCEPT TRAFFIC CONTROL) CERTIFIED AGREEMENT 2005

Security services
COMMISSIONER SPENCER	BRISBANE, 24 JANUARY 2018

Application for termination of the Building Service Contractors Association of Australia - Queensland Division, Security Operations (except Traffic Control) Certified Agreement 2005.

[1] An application pursuant to Sch. 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and s.225 of the Fair Work Act 2009 (the FW Act) was made by United Voice (the Applicant) to terminate the Building Service Contractors Association of Australia - Queensland Division, Security Operations (except Traffic Control) Certified Agreement 2005 (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument and has a nominal expiry date of 1 July 2008.

[3] Pursuant to Sch. 3, Item 16 of theTransitional Act:

“16 Collective agreement-based transitional instruments: termination by the FWC

(1) Subdivision D of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements after their nominal expiry date) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

(2) For the purpose of the application of Subdivision D to an old IR agreement, the agreement’s nominal expiry date is taken to be the end of the period of the agreement.

[4] Further, ss.225 and 226 of the FW Act relevantly provide:

“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.

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.”

[5] There is some history to the matter. The Applicant is an employee organisation covered by the Agreement. The Applicant’s Form F28 initially named twelve employers covered by the Agreement, as set out:

● Thomas Plus Security;

● Powerhouse Realty Pty Ltd (formerly Newtech Property Services (Qld) Pty Ltd);

● Powerhouse Realty Pty Ltd (formerly Northern Security Solutions Pty Ltd);

● Wilson Parking Australia 1992 Pty Ltd;

● Securecorp (Qld) Pty Ltd;

● Harvent Pty Ltd T/A TBM Security Services;

● Trident Security (Qld) Pty Ltd;

● Infront Crowd Management Services Pty Ltd;

● Infront Guard and Patrol Services Pty Ltd;

● Howard Services Pty Ltd T/A Axis Security;

● Gradfield Pty Ltd T/A ARM Security; and

● Asset Protection Systems Pty Ltd.

[6] Schedule B to the application contained copies of ABN Lookup information and ASIC Current and Historical Company Extracts for the relevant employers. On 27 March 2017, the Applicant was directed to engage in discussions with the relevant employers and provide material in satisfaction of s.226(b)(i) of the FW Act. This correspondence was also sent to the relevant employers covered by the Agreement at the contact details provided. The Applicant set out the reasons for the termination, as:

“a. The agreement passed its nominal expiry date over 8 1/2 years ago;

b. The agreement was made under legislation which has been superseded several times;

c. The agreement contains outdated legacy provisions;

d. Agreements are not intended to operate in perpetuity;

e. The agreement contains terms and conditions which are below the modern safety net of conditions contained in modern awards and the National Employment Standards;

f. The objects of the Act, including the maintenance of fair, relevant and enforceable minimum terms and conditions of employment are best achieved by termination of the agreement;

g. The agreement currently applies to employees who did not make the agreement; and

h. If not terminated, the agreement will apply to future employees, further distant from the agreement making process.” 1

[7] On 4 April 2017, correspondence was received from Asset Protection Systems Pty Ltd stating that it had implemented a replacement enterprise agreement and would not be affected by the application. On 17 August 2017, Wilson Parking Australia 1992 Pty Ltd and Harvent Pty Ltd T/A TBM Security Services stated in correspondence that they did not object to the application.

[8] On 2 November 2017, Mr Simon Ong, Industrial Officer of the Applicant, filed an affidavit that set out the further steps undertaken since the application was lodged. Mr Ong stated that the several employers covered by the Agreement had ceased operations or had made replacement enterprise agreements. As a result, Mr Ong stated that the Agreement continued to apply to three employers:

● Wilson Parking Australia 1992 Pty Ltd;

● Securecorp (Qld) Pty Ltd; and

● Harvent Pty Ltd T/A TBM Security Services. 2

[9] Mr Ong also stated that the Building Service Contractors Association of Australia (BSCAA) was an interested party in the proceedings. The BSCAA had previously corresponded to Chambers indicating that it did not object to the application.

[10] Mr Ong stated that he had caused correspondence to the sent to the Applicant’s members engaged by the relevant employers and who he believed to be covered by the Agreement. This correspondence set out the implications of the termination and sought their views. Mr Ong stated that only one member requested a copy of the application and no views were provided.

[11] On 12 November 2017, Securecorp (Qld) Pty Ltd stated that it did not object to the application however stated that it continued to employ a substantial workforce covered by the Agreement. On 20 November 2017, correspondence was forwarded to Chambers from TBM, stating that company no longer employed any staff and did not hold any security contracts.

[12] Further directions were set in relation to obtaining the views of any employees employed under the Agreement.

[13] Ms Hayley Valente, Human Resources Manager – SA/NT/QLD of Wilson Parking Australia 1992 Pty Ltd, provided an affidavit in these proceedings. Ms Valente stated:

“6. I am aware that the Commission must be take into account the views of employees covered by the agreement when considering whether to terminate the agreement.

7. In order to aide in obtaining the views of relevant employees of Wilson Security, the following processes occurred, in consultation with the Union:

a. On 20 November 2017, I circulated an email (blind carbon copied to preserve privacy) to all employees of Wilson Security who remain covered by the BSCAA agreement. The email is annexed at “HV-1”;

b. The email contained a notice advising of these proceedings, and that employees could provide their views on the application to a “Gmail” address. The notice is annexed at “HV-2”;

c. The notice also contained links to a variety of documents which are relevant to the proceedings, including the BSCAA agreement, the application to terminate, the relevant modern award and a comparison document;

d. The notice advised employees to provide any feedback by 1 December 2017.

8. At the time of making this affidavit, no employees of Wilson Security have provided any feedback.” 3

[14] Ms Sally Pedlow, General Manager - People and Culture of Securecorp (Qld) Pty Ltd also provided an affidavit in these proceedings. Ms Pedlow stated that Securecorp did not oppose the termination of the agreement, however sought a 12 week transitional period after any decision was made to terminate the Agreement. There were no objections to this request.

[15] Ms Pedlow set out the steps taken to obtain the views of Securecorp’s employees covered by the Agreement:

“6. I am aware that the Commission must be take into account the views of employees covered by the agreement when considering whether to terminate the BSCAA agreement.

7. To aide in obtaining the views of relevant employees of Securecorp, the following processes occurred, in consultation with the Union:

a. On 29 November, 2017, I caused to be circulated an email to all employees of Securecorp who remain covered by the BSCAA agreement and for whom we have an email address. The email is annexed at “SP-1”;

b. The email contained a letter to employees from SECUREcorp advising of the application from United Voice, Schedule C, and a copy of SECUREcorp’s response to the Application submitted to the Commission in November 2017. The letter is annexed at “SP-2”;

c. The letter advised employees to provide any feedback or views on the proposed termination of the Agreement by 8 December 2017.

8. At the time of making this affidavit, one employee of Securecorp has lodged an enquiry to the Gmail address.

9. 2 employees of Securecorp emailed Casey Yearbury (State Operations Manager for SECUREcorp in QLD) with queries in relation to the proposed termination, and one employee telephoned Casey with a query.” 4

[16] The matter was listed for Hearing on 24 January 2018 and any other relevant persons were invited to provide their views. No further views were provided.

[17] Annexed to the application was a comparison of the conditions between the Agreement and the Security Services Industry Award 2010 (the Award). The Applicant set out that the provisions of the Award are superior to that of the Agreement.

[18] Taking into account the matters in s.226 of the Act, I am satisfied that it would be appropriate to terminate the Agreement.

[19] Securecorp continues to employ approximately 500 employees covered by the Agreement. Accordingly, a 12 week transition period was sought to allow for the employers and employees to transition to the Award. This request was supported by BSCAA and was not opposed by the Applicant.

[20] In these circumstances, 5 it would be appropriate to terminate the Agreement effective 12 weeks from the date of this Decision.

[21] An Order [PR599753] to that effect will issue together with this Decision.

COMMISSIONER

 1   Applicant’s Form F24C at 2.1.

 2   Affidavit of Simon Ong affirmed 2 November 2017 at para 17.

 3   Affidavit of Hayley Valente affirmed 15 December 2017 at paras 6 – 8.

 4   Witness Statement of Sally Pedlow dated 3 January 2018 at [6] – [9].

 5   Application by Shop, Distributive and Allied Employees Association and anor [2017] FWCA 5703.

Printed by authority of the Commonwealth Government Printer

<PR599752>