AST Protective Services Pty Ltd

[2014] FWCA 1584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AST Protective Services Pty Ltd
(AG2014/90)

ASF PROTECTIVE SERVICES ENTERPRISE AGREEMENT 2013-2017

Security services
COMMISSIONER GREGORY	LAUNCESTON, 11 MARCH 2014

Application for approval of the ASF Protective Services Enterprise Agreement 2013-2017.

[1] An application has been made for approval of an enterprise agreement known as the ASF Protective Services Enterprise Agreement 2013-2017 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) by AST Protective Services Pty Ltd which trades as ASF Protective Services. The single-enterprise agreement is currently proposed to cover four employees now covered by the Security Services Industry Award 2010 and the General Retail Industry Award 2010. They are variously employed on a full time, part time and casual basis. No bargaining representatives were appointed by the employees.

[2] On reviewing the application I was concerned that some aspects of the proposed Agreement may not satisfy the requirements of the “better off overall” test. These concern, in particular, the rates and rosters proposed both for permanent and casual non-rotating day workers, the entitlement of part-time employees to overtime payments when working additional hours, the proposed arrangements for averaging of hours, and the maximum shift length proposals. For example, in this context the Agreement proposes that a maximum of 12 hours per shift can be worked, whereas the Awards provide for more limited shift lengths or for 12 hour shifts only by agreement.

[3] These concerns were detailed in correspondence sent to the Applicant’s representative. The Commission was subsequently provided with an explanation in response regarding the intent of the part-time provisions in part 4.2 of the proposed Agreement, and the operation of the proposed averaging arrangements.

[4] An undertaking has also been provided which limits the length of shifts that can be worked by Protective Services Level 1 employees to 9 hours. A further series of undertakings have been proposed which increase the rates to apply to Protective Services Level 1 employees working across various roster patterns. These take account, in particular, of the leave loading entitlements that would apply under the Awards and for the applicable casual loading in the General Retail Industry Award 2010.

[5] These changes obviously involve a range of variations to the rates and entitlements originally proposed. However, I am satisfied they will not cause financial detriment to any employee to be covered by the proposed Agreement and instead actually provide additional entitlements. I am also satisfied the changes are not “substantial changes” in the context of s.190(3)(b) of the Act. I have accordingly accepted the undertakings, which are attached to this decision and will, in accordance with section 191(1) of the Act, be taken to be a term of the Agreement.

[6] I am also satisfied each of the requirements of ss.186, 187, 188 and s.190 as are relevant to this application for approval have been met.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 March 2014. The nominal expiry date of the Agreement is 15 December 2017.

COMMISSIONER

Attachment A:

Printed by authority of the Commonwealth Government Printer

AST Protective Services Pty Ltd was the applicant seeking approval of the AST Protective Services Enterprise Agreement 2013-2017. The application was made in the Fair Work Commission, which has jurisdiction over such matters. The nature of the dispute was the request for the Commission to approve the agreement as a safety net award, ensuring that it provided minimum standards of pay and conditions for employees.

The legal issues the court had to address included whether the agreement provided for minimum rates of pay and conditions that were no less favourable than the applicable safety net award, and whether it was consistent with the provisions of the Fair Work Act 2009. Furthermore, the court needed to consider whether the agreement adequately covered the employees’ rights and obligations and if it complied with the requirements set out in the Act.

The court found that the agreement met the safety net provisions and did not set terms and conditions that were less favourable than the applicable award. The agreement was deemed to cover all necessary provisions for the employees and was consistent with the requirements of the Fair Work Act. As such, the court approved the application, and the AST Protective Services Enterprise Agreement 2013-2017 was registered as a safety net award. This decision ensured that employees within the scope of the agreement would receive the minimum rates of pay and conditions as set out in the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established