Wilson Security Pty Ltd T/A Wilson Security

[2022] FWCA 1417

[2022] FWCA 1417 [Note: a correction has been issued to this document]

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

Wilson Security Pty Ltd T/A Wilson Security

(AG2022/1094)

Wilson Security - South Australia and Northern Territory Employee Collective Agreement 2009

Industries not otherwise assigned
COMMISSIONER PLATT	ADELAIDE, 28 APRIL 2022

Application for termination of the Wilson Security – South Australia and Northern Territory Employee Collective Agreement 2009

1. On 11 April 2022, Wilson Security Pty Ltd T/A Wilson Security (Wilson Security or the Applicant) filed an application pursuant to Item 16, Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act (the Transitional Act) to terminate the Wilson Security – South Australia and Northern Territory Employee Collective Agreement 2009 (the Agreement).

1. Item 16 of Schedule 3 of the Transitional Act requires the Commission to deal with the application as if it is made under s.225 of the Fair Work Act 2009 (the Act).

1. Relevantly, s.226 of the Act, is as follows:

“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.”

1. On 14 April 2022, I issued Directions requiring the Applicant to provide a copy of the form F28 application (with attachments, including a comparison between the Agreement and the Security Services Industry Award 2020 (the Award)), statutory declaration and the Directions to each employee organisation (if any) and all employees covered by the Agreement.

1. On the same day, I received an email from the Applicant advising that the Directions had been complied with.

1. I have received one objection, by email, from an employee who is covered by the Agreement, who expressed that he felt as if he was better off under the Agreement then under the Award. I requested the employee provide further information in respect of why he considered himself better off under the Agreement and invited him to attend the conference on 27 April 2022 to express his views. The employee did not respond further, nor did he attend the conference.

1. The United Workers’ Union (UWU), an employee organisation covered by the Agreement, advised that they did not oppose the termination of the Agreement, and were in ongoing discussions with the Applicant as to how certain provisions in the Agreement that they believed were beneficial in comparison to those in the Award could be maintained going forward.

1. I have considered the information provided in the application by the Applicant pursuant to section 225 of the Act. This includes the Statutory Declaration by Mr Ricky Plummer, Workplace Relations Legal Counsel of Wilson Security, dated 11 April 2022. Mr Plummer makes the following submissions in relation to the approval of termination:

·   The Agreement passed its nominal expiry date approximately 9 years ago.

·   The Award contains a number of terms and conditions of employment that are more beneficial than those contained in the Agreement.

·   As such, the terms of the Award will generally leave employees better off overall.

1. I am satisfied as to each of the matters contained in section 226 of the Act. I find that it is not contrary to the public interest to terminate the Agreement and that it is appropriate to terminate the Agreement taking into account the views of the employer and employees covered by the agreement and the effect that the termination will have upon them.

1. The Applicant made submissions in relation to the proposed effective date of termination. The Applicant submitted that it was appropriate to allow for a 28-day transition period such that the Applicant has time to transition affected staff from conditions in the Agreement to those in the Award. The UWU indicated that they did not oppose the Applicant’s proposed date. I do not consider that 28 days is an excessive period of time to delay the effect of termination. In accordance with section 227 of the Act, the termination will come into effect on 25 May 2022.

COMMISSIONER

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