[2010] FWAFB 1169 [2010] FWAFB 1169 Download Word Document FAIR WORK AUSTRALIA DECISION Workplace Relations Act 1996 s.576H—Commission may vary modern awards Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 Sch 5, Item 14—Variation of modern award Liquor, Hospitality and Miscellaneous Union (AM2009/207) SECURITY SERVICES INDUSTRY AWARD 2010 [MA000016] JUSTICE GIUDICE, PRESIDENT VICE PRESIDENT LAWLER VICE PRESIDENT WATSON SENIOR DEPUTY PRESIDENT WATSON SENIOR DEPUTY PRESIDENT HARRISON SENIOR DEPUTY PRESIDENT ACTON COMMISSIONER SMITH MELBOURNE, 18 FEBRUARY 2010 [1] This decision concerns an application by the Liquor, Hospitality and Miscellaneous Union (LHMU) to vary the Security Services Industry Award 2010 1 (the modern award) . The application was made pursuant to s.576H of the Workplace Relations Act 1996 and was not determined by 31 December 2009. The application will be determined by Fair Work Australia pursuant to item 14 of Schedule 5 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. 2 [2] In order to explain the basis for the application it is necessary to set out some background. In a decision given on 22 December 2009 the Full Bench varied the modern award in a number of respects in response to an application by the Australian Security Industry Association Limited (ASIAL). 3 One of the variations made by the Full Bench was to include a change of contract clause as a new subclause 12.5. That subclause was relevantly identical to a subclause that had been added to the Cleaning Services Award 2010 4 by the Full Bench in a decision given on 24 November 2009. 5 In its decision varying the modern award the Full Bench noted that similar considerations applied to those which had been taken into account in varying the Cleaning Services Award 2010 . The following passage is relevant: “[14] The LHMU noted that the change sought by ASIAL mirrors a change made in the Cleaning Services Award 2010. It submitted, however, that the circumstances of the cleaning and security services industries differ and that ASIAL has not demonstrated that the security industry has “developed specific arrangements for termination and redundancy to reflect the way the industry operates. [15] From our own knowledge of the security industry we are satisfied that a change of contract with the incoming contractor taking over some or all of the relevant staff of the outgoing contractor is a common occurrence in the security industry. We are not persuaded that, in this respect, the circumstances of the cleaning and security industries differ materially. The addition of paragraph 33AAA to the request after the making of the Security Services Award is a circumstance that makes it appropriate to revisit cl.12 of that award. We regard ASIAL’s proposal as appropriate. We will vary the award to add a subclause to the same effect as that proposed by ASIAL.” 6 [3] In the present application the LHMU seeks to have additional provisions from the Cleaning Services Award 2010 included in the modern award . Those provisions are a definition of “change of contract” and a clause dealing with consultation regarding change of contract. The grounds are outlined succinctly in the application: “[1.5] The LHMU submits that given the Bench has been minded to vary the Security Services Award 2010 to include a change of contract provision in terms identical to those of the Cleaning Services Award 2010, it is both appropriate and necessary to include the supporting clauses found in the Cleaning Services Award 2010 and set out in Appendix A. [1.6] These supporting clauses give the full meaning to the change of contract provisions contained in clause 12.5 of the Security Services Industry Award 2010, and will remove any ambiguity or uncertainty by defining change of contract and appropriate consultation.” [4] ASIAL has not made any submission in opposition to the application. The application is opposed by the Australian Industry Group on the basis that the LHMU had an opportunity to advance these contentions when the ASIAL variation application was being considered (and failed to do so) and there are no significant changes in circumstances to justify revisiting the issue. [5] In our view the alterations which are now sought are ancillary to the substantive provision dealing with change of contract which was included in the award on 22 December 2009. As is clear from the passsage set out above, in its decision varying the modern award to include the change of contract provision, the Full Bench accepted that the circumstances of the security industry and the cleaning services industry were sufficiently similar to adopt the relevant operative clause from the Cleaning Services Award 2010 . While it is true that the LHMU could have sought these provisions at the time ASIAL’s application for the change of contract provision was being considered, it seems to us that the award is likely to operate more effectively if the variations are made. We have decided to allow the LHMU’s application. We shall vary the modern award accordingly. PRESIDENT 1 MA000016. 2 Schedule 5 was modified by the Fair Work Legislation Amendment Regulations 2009 (No.2) on 14 December 2009. 3 AM 2009/11; [2009] AIRCFB 963 . 4 MA000022. 5 [2009] AIRCFB 933 . 6 [2009] AIRCFB 963 . 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