United Voice - New South Wales Branch

[2018] FWCA 2899

[2018] FWCA 2899

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

United Voice - New South Wales Branch
(AG2018/1287)

TEMPO SECURITY NSW ENTERPRISE AGREEMENT 2006-2009

Security services
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 7 JUNE 2018

Termination of the Tempo Security NSW Enterprise Agreement 2006-2009.

[1] On 3 April 2018, United Voice applied to terminate the Tempo Security NSW Enterprise Agreement 2006-2009 1(the agreement). United Voice is an organisation covered by the agreement, and therefore has standing to make the application.

[2] On 6 April 2018, Wilson Security Pty Ltd (Wilson or the employer) was directed to draw the application to the attention of all of its employees covered by the agreement by 13 April 2018. The Fair Work Commission (the Commission) indicated that if no objection to the application was received by 27 April 2018, the agreement would be terminated with effect from 30 April 2018.

[3] Around nine employees (the objecting employees) emailed my chambers indicating their opposition to the application to terminate the agreement. The objecting employees all indicated that their concern was that termination of the agreement would lead to a reduction in their rate of pay.

[4] Directions were issued for from those parties supporting the application to file their submissions by 14 May 2018, with submissions from those opposing the application due by 21 May 2018. The parties were advised that in addition to any submissions received in accordance with these directions, the Commission would have regard to the previous emails from the objecting employees.

Background

[5] The agreement was entered into between the Liquor, Hospitality and Miscellaneous Union (as United Voice was then called) and a security company called Tempo Security Services Pty Ltd (Tempo) in 2006. Around the time the agreement was made, Tempo was bought out by ISS Security Pty Ltd (ISS).

[6] Early in 2014, Wilson bought ISS, including its security contracts. Many employees that were providing security services for ISS were offered and accepted employment with Wilson. Their employment commenced on 31 March 2014. By virtue of the transfer of business rules, Wilson was required to continue to apply the provisions of the agreement to the employees that it inherited from ISS, including those employees ISS had previously inherited from Tempo.

[7] The agreement applies to approximately 62 employees out of the employer’s workforce in New South Wales of approximately 795 employees.

The legislation

[8] Item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the FW Act) 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. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the FW Act.

[9] Section 226 of the FW Act provides:

‘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.’

Consideration

[10] I am satisfied that terminating the agreement is not contrary to the public interest. In particular, there is a guaranteed safety net of relevant and enforceable minimum terms and conditions of employment that will apply if the agreement is terminated in the Security Services Industry Award 2010 2 (the award). The agreement was made around 12 years ago, under previous legislation, and nominally expired nearly nine years ago (on 30 June 2009).

[11] Both the employer and the only employee organisation covered by the agreement support its termination.

[12] Five individual employees (the supporting employees) filed submissions in support of the application. As previously mentioned, around nine employees opposed the application.

[13] In support of its application, United Voice pointed out that the agreement contains no provision for increases in rates of pay beyond the rates set for the first pay period after 1 July 2008. Employees therefore rely on s.206 of the FW Act for a wage rise.

[14] United Voice acknowledged that there are a small number of employees who are paid in excess of the award for the roster they work. However, most of the employees employed under the agreement work rosters that mean that they are currently paid significantly less than they would be under the award. For example, an employee working a typical roster would be $294.24 better off under the award over eight weeks for an award level 3 employee than under the agreement, and $187.81 better off over a four-week period for an award level 2 employee. In both cases, these calculations exclude public holidays. The difference between the award and the agreement would be even greater if public holidays were included, as these are paid at ordinary time in the agreement, but at double time and a half under the award.

[15] The objecting employees indicated they would be paid less under the award than under the agreement. Some of them also expressed concern that this could adversely affect their accrued entitlements such as long service leave and annual leave.

[16] The supporting employees submitted that they would be significantly better off under the award than the agreement.

[17] The employer submitted that the agreement was entered into by a previous employer, and not even the immediate past employer (ISS), but the employer before that (Tempo). The agreement deals with working arrangements that are no longer relevant to Wilson’s own business practices. This leads to difficulties applying the agreement.

[18] In addition, the agreement contains clauses that are inconsistent with the NES. This exacerbated because the agreement is based on the former New South Wales State award, rather than the relevant modern award.

[19] I am satisfied that taking into account all the relevant circumstances it would be appropriate to terminate the agreement. The agreement is quite out of date, and termination would benefit both the employer and most of the employees.

[20] I accept that a relatively small number of employees could be left worse off if they were paid under the award. I note that the employer has indicated that it is currently reviewing its records to determine the full extent of any impact, and is willing to consider offering Individual Flexibility Arrangements to affected employees to enable them to maintain their current remuneration. I strongly recommend that it do so.

Conclusion

[21] I terminate the agreement with effect from the first pay period on or after 1 July 2018.

SENIOR DEPUTY PRESIDENT

 1   AG848349.

 2   MA000016.

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<AG848349  PR607336>