Backup Security Services Pty Ltd T/A Backup Security Services

[2014] FWCA 4449

[2014] FWCA 4449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Backup Security Services Pty Ltd T/A Backup Security Services
(AG2014/5904)

BACKUP SECURITY - ENTERPRISE AGREEMENT - 2014

Security services
COMMISSIONER GREGORY	MELBOURNE, 24 JULY 2014

Application for approval of the Backup Security - Enterprise Agreement - 2014.

[1] An application has been made for approval of an enterprise Agreement known as the Backup Security - Enterprise Agreement - 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Backup Security Services Pty Ltd T/A Backup Security Services. It is a single-enterprise Agreement.

[2] On reviewing the application clarification was sought from the Applicant about a range of matters. These included the rates to be paid for work at weekends; the averaging arrangements for ordinary hours; the overtime entitlements to be provided to security managers; the entitlement to allowances that would otherwise be available under the underlying Security Services Industry Award 2010, and the entitlements for overtime work on Sundays.

[3] The Agreement is otherwise structured on the basis that it provides loaded wage rates for the hours worked, depending upon when employees are rostered to work. It is apparent from reviewing the application that these arrangements mean that employees will generally be better off under the proposed Agreement, compared to being employed under the terms and conditions contained in the Award, when working between Monday and Friday on daytime rosters. However, the position concerning work at weekends is by no means as clear and in any given case is largely dependent on when the employees are actually rostered to work.

[4] The Applicant’s representative provided responses to the various issues raised by the Commission. It also submitted that the proposed Agreement is similar in its terms to other agreements that have been previously approved by the Commission. However, I consider this is of limited relevance. As indicated the question of whether an employee is better off under this Agreement than under the Award depends upon the actual hours any employee is rostered to work and when those hours are rostered. For this reason I consider that any agreement structured in this way stands alone and should be considered on the basis of its particular conditions and circumstances.

[5] The Applicant’s representative in this matter has proposed a form of undertaking to satisfy the issues that have been identified by the Commission. I have decided to accept the undertaking. It will require the employer to conduct an audit every eight weeks from the date of operation of the Agreement for the purpose of comparing the entitlements due to employees under the terms of the Agreement with the entitlements that would otherwise have applied to those employees if they were engaged under the terms and conditions contained in the Security Services Industry Award 2010. This includes all entitlements that would apply in either case, including any penalty rate entitlements, allowances, overtime entitlements and leave entitlements.

[6] The undertaking continues to provide that in the event of any shortfall or deficiency between the entitlements provided for under the Agreement, compared to those provided for under the Award, the employer will make up that shortfall or deficiency to the employee(s) in the next pay cycle, and will ensure that the same shortfall or deficiency does not occur again. In addition, the employer is to provide details about the outcome of these audits to any employee(s), if requested to do so, within three days of that request being made. The undertaking will now form part of the Agreement and a copy is attached to this decision.

[7] It is also noted that the application to approve the Agreement was not made within fourteen days after the Agreement was made. It is understood that this oversight was due to a genuine misunderstanding on the part of the Applicant and I am, in all the circumstances, prepared to extend the period in accordance with the discretion that exists in s.185(3)(b) of the Act until the date when the application was made.

[8] I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and s.190 as are relevant to this application have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 July 2014. The nominal expiry date of the Agreement is 30 July 2018.

COMMISSIONER

Attachment A:

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