Wilson Security Pty Ltd T/A Wilson Security

[2020] FWCA 581

[2020] FWCA 581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Wilson Security Pty Ltd T/A Wilson Security
(AG2020/170)

MANDURAH INDUSTRIAL GUARDS PTY LTD ENTERPRISE AGREEMENT 2009

Security services
DEPUTY PRESIDENT BEAUMONT	PERTH, 17 MARCH 2020

Application for termination of the Mandurah Industrial Guards Pty Ltd Enterprise Agreement 2009.

[1] This decision concerns an application made on 23 January 2020 under s.225 of the Fair Work Act 2009 (Cth) (the Act) by Wilson Security Pty Ltd T/A Wilson Security (Wilson) for the termination of the Mandurah Industrial Guards Pty Ltd Enterprise Agreement 2009 1(the Agreement).

[2] Initially, an application was brought by an employee of Wilson, Mr Cameron Pages, a Security Officer, who worked within the Security Services division of the organisation. Mr Pages had formed the view that the termination of the Agreement would result in the Security Officers receiving benefits that would be equal to other persons performing the same work. 2

[3] In 2018, Wilson acquired the company Mandurah Industrial Guards Pty Ltd (Mandurah Guards) and employees, such as Mr Pages, transferred over from their old employer. The former employees of Mandurah Guards continued to be covered by the Agreement notwithstanding the terms and conditions of the Security Services Industry Award 2010 3 (the Award) generally applied to other employees of Wilson throughout Australia.

[4] On receipt of the application, Wilson indicated that they were supportive of Mr Page’s application to terminate the Agreement and would assist the Commission by providing material in support. Not long after making the application, Mr Pages decided to resign from Wilson, and it was agreed between the parties that he would discontinue his application and Wilson would thereafter make an application to terminate the Agreement, which of course it did. Having considered the submissions made, it was decided that the matter could be dealt with on the papers.

Background

[5] Wilson, in support of its application, provided a statutory declaration from Ms Gabrielle Czarnota (Ms Czarnota) the Group Workplace Relations Manager for Wilson.

[6] Wilson submitted that if the Agreement was terminated, the affected employees, namely fifteen employees, would be covered by the terms of the Award and the Award would apply to their employment with Wilson. 4 In Ms Czarnota’s view, the Agreement did not contain some benefits that the Award would otherwise provide.5

[7] The Agreement’s nominal expiry date was 27 November 2013, and it did not cover any employee organisations.

[8] According to Ms Czarnota, on 18 December 2019, Wilson wrote to each of the employees covered by the Agreement and:

a) summarised the nature and effect of the application being the potential that the Agreement would be terminated and that the Award would apply to their employment;
b) that, on Wilson’s assessment, they would generally be better off overall (save for one employee who was informed that they may see a reduction in pay moving to the Award as a result of their current roster pattern and hours worked);
c) directed them to the terms of both the Agreement and the Award for their review and consideration; and
d) requested that they respond with confirmation that they either support the termination, do not support the termination, or require further information before being able to form a view. 6

[9] Ms Czarnota confirmed that she had received feedback from six employees about their views regarding the potential termination of the Agreement. The feedback forms of the six employees were provided to the Commission and clarification was sought regarding the responses received. Some employees had indicated they wanted further questions answered before indicating their preference. Ms Czarnota filed a further witness statement on 23 January 2020, setting out that five employees supported the termination of the Agreement. 7 It was Ms Czarnota’s evidence that responses were not received from the remaining employees, and on this point she observed that seven were casual employees who had not performed a shift in the past six months or more.8

[10] Having considered the roster patterns of the employees, Ms Czarnota gave evidence that the employees would be better off overall under the Award than under the terms of the Agreement, with the exception of one employee. 9 Ms Czarnota made available to the Commission Wilson’s modelling of the rates payable pursuant to the Agreement and the Award. Modelling was premised on hours recently worked by the employees.10 After factoring in allowances, one employee was $3.15 an hour worse off under the Award.11 The remaining seven employees engaged over this month-long period were better off under the Award when compared to the Agreement.

[11] It was Wilson’s submission that the termination of the Agreement was not contrary to the public interest because:

a) termination of the Agreement will not undermine proper industrial standards as the Award will apply to the affected employees; and
b) the terms of the Award will leave employees better off overall. This largely arises from the terms of the Award relating to weekend and shift penalties where the Agreement instead provides “rolled up” rates without additional entitlements to weekend or shift penalties. 12

[12] Wilson further submitted that it would undertake that all employees covered by the Agreement at the termination date would be paid no less than the Agreement aggregate rate for a period of 12 weeks following termination. Further, with regard to the employee who worked day shift only and would therefore see a reduction in pay should the Agreement terminate, and the Award cover and apply, Wilson would discuss whether the employee preferred to perform any work outside the day span to attract appropriate Award penalty rates.

The law

[13] Section 225 allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[14] Section 226, set out below, details the considerations for the Commission when dealing with such an application.

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

[15] Having considered the materials submitted, I am satisfied that the termination of the Agreement is not contrary to the public interest. As a result of the termination, the terms and conditions of employment of the affected employees will accord with industrial standards set by the Award.

[16] Further, in the circumstances it is appropriate to terminate the Agreement. The views of the employer and affected employees have been considered. The employees have been fully apprised of the process and the likely effect that the termination of the Agreement will have on them, particularly regarding pay rates. I accept Ms Czarnota’s statements in her statutory declaration and have, in addition, taken into account the undertaking proffered (set out at Annexure One).

[17] Pursuant to s.227 of the Act, the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Annexure One

 1   AE874050; [2010] FWAA 1870.

 2   Form 24C - Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date of Mr Cameron Pages ,dated 18 November 2019.

 3   MA000016.

 4   Form F24C – Statutory declaration in relation to termination of an enterprise agreement after the nominal expiry date Gaby Czarnota dated 23 January 2020 (Czarnota Statutory Declaration) [1].

 5   Ibid [2.1 (2)].

 6   Ibid [2.1 (2)].

 7 Ibid [3].

 8   Ibid [2.3 (2)].

 9   Ibid [2.1 (3)].

 10   Ibid [2.3 (2)].

 11   Ibid [2.3 (1)].

 12   Ibid [2.1 (4)].

Printed by authority of the Commonwealth Government Printer

<AE874050  PR716414>