Fair Work Act 2009

s.210 - Enterprise agreement

Application for variation of the Prosek Security Pty Ltd Collective Agreement 2008 [AC314892] - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch 3 item 9(1) - no jurisdiction - application dismissed.

1. On 9 August 2017, Prosek Security Services Pty Ltd (Prosek) applied to the Fair Work Commission (the Commission) under s.210 of the Fair Work Act 2009 (Cth) (the FW Act) for approval of variations to the Prosek Security Pty Ltd Collective Agreement 2008[1] (the Agreement).

[2] Section 210 of the FW Act provides:

'210 Application for the FWC's approval of a variation of an enterprise agreement

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

(b) a copy of the agreement as proposed to be varied; and

(c) any declarations that are required by the procedural rules to accompany the application.

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

(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.'

[3] Section 172 of the FW Act defines an enterprise agreement as one that may be made in accordance with Part 2-4 of the FW Act. However, the Agreement was made and registered under the Workplace Relations Act 1996 (the WR Act), not the FW Act. It is therefore not an enterprise agreement for the purposes of s.210 of the FW Act. Rather, the Agreement is a collective agreement-based transitional instrument, and its continued operation is governed by the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[4] On 14 August 2017, I directed my chambers to email Prosek's representative indicating this. That email further directed Prosek to item 9(1) of Sch 3 to the TPCA Act (item 9(1)), which states:

'9 Transitional instruments can only be varied or terminated in limited circumstances

(1) A transitional instrument cannot be varied, except under:

(a) a provision of this Part or the regulations; or

(b) item 26 (which deals with resolving difficulties with the interaction between transitional instruments and the National Employment Standards); or

(c) Part 2 of Schedule 5 (which deals with the WR Act award modernisation process); or

(d) Division 2 of Part 2 of Schedule 6 (which deals with the enterprise instrument modernisation process); or

(e) Schedule 8 (which deals with workplace agreements and workplace determinations made under the WR Act); or

(f) Schedule 11 (which deals with transfer of business); or

(g) Part 3 of Schedule 2 (which deals with conduct before the WR Act repeal day).' [my emphasis]

[5] Prosek subsequently requested the opportunity to make submissions in relation to items 9(1)(b) and (e) in particular.

[6] I am not persuaded by Prosek's submissions. With respect, they appear to misapprehend the operation of item 9(1). The starting point in item 9(1) is that transitional instruments cannot be varied. It then sets out an exhaustive list of exceptions to that rule.

1. In relation to item 9(1)(b), Prosek submits that 'there is no difficulty within the interaction between the transitional instrument being the Agreement and the NES [that is, the National Employment Standards]',[2] and that 'there is no need for a determination of this Commission to make the instrument effectively with the NES for this variation. This variation is only seeking to replace old classifications with the classifications from the [Security Services Industry Award 2010].'[3] But this is precisely why the variations cannot be approved under that subitem. Item 9(1)(b) provides that variation of the Agreement is not allowed unless there is discord between the Agreement and the National Employment Standards. Prosek's submission expressly acknowledges that the variation sought does not seek to address such a conflict; indeed, it goes further and says there is no such conflict.

2. Similarly, in relation to item 9(1)(e), Prosek submits that '[Schedule 8] has no bearing on the variation being sought in this application',[4] and that '[t]he change in the classification structure being sought does not affect the original approval [of the Agreement] and the application of the "no-disadvantage" test'.[5] Item 9(1)(e) refers to Schedule 8 of the TPCA Act, which relevantly preserves some provisions of the WR Act relating to variations made before the WR Act repeal day (1 July 2009) in order to pass the no-disadvantage test. I agree that this item is not relevant to the variations Prosek seeks, because they were not made before the WR Act repeal day.

[9] Thus, it appears Prosek's own submissions are directed to explaining why the variations it seeks do not meet the descriptions of variations under items 9(1)(b) and (e). The effect of item 9(1) is that the variations therefore cannot be approved under either of those exceptions.

[10] Further, having reviewed the proposed variations directly, I cannot find that they can be approved under any of the other parts of the TPCA Act listed in item 9(1) of Sch 3. Accordingly, the Commission does not have the jurisdiction to approve the variations and the application is dismissed.

Prosek Security Services Pty Ltd: 14 September 2017.

1. [1] AC314892.
2. [2] Prosek's submissions (14 Sep 2017) [10].
3. [3] Ibid [20]-[21].
4. [4] Ibid [25].
5. [5] Ibid [27].

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