Baseline Group (Personnel) Pty Ltd T/A Baseline Group
[2020] FWCA 5435
•20 OCTOBER 2020
| [2020] FWCA 5435 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Baseline Group (Personnel) Pty Ltd T/A Baseline Group
(AG2020/2493)
BASELINE GROUP SECURITY EMPLOYEES ENTERPRISE AGREEMENT 2020 - 2023
Security services | |
DEPUTY PRESIDENT BULL | SYDNEY, 20 OCTOBER 2020 |
Application for approval of the Baseline Group Security Employees Enterprise Agreement 2020-2023 - Agreement negotiations subject to Interest Based Bargaining
[1] An application has been made for approval of an enterprise agreement known as the Baseline Group Security Employees Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Baseline Group (Personnel) Pty Ltd T/A Baseline Group, which is a labour hire provider in the resources sector. The Agreement is a single enterprise agreement.
[2] The Agreement replaces the Resource Employment Partners Pty Ltd Enterprise Agreement 2011-2014, and operates to the exclusion of any modern award or other industrial instrument, which applied prior to the approval of the Agreement. 1
[3] The Agreement applies to all employees engaged by Baseline Group (Personnel) Pty Ltd (Baseline Group) employed in the various classifications of Security Officer as specified in subclause 2.1.1 of the Agreement whose work would otherwise be covered by the Security Industry Award 2020 (the Award).
[4] As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.
Interest Based Bargaining
[5] Following a recommendation contained in the 2012 Report of the Fair Work Act Review Panel, an amendment to the Act bestowed on the Fair Work Commission (the Commission), an additional function: ‘Promoting cooperative and productive workplace relations and preventing disputes’.2
[6] Following this amendment to the Act, the Commission’s President, after consultation with relevant stakeholders, endorsed a ‘New Approaches’ strategy to give effect to this new function. New Approaches shifts the focus of the Commission’s role from resolving disputes, to supporting parties to transform their workplace relations to collaboratively facilitate change, foster innovation and drive productivity improvement.
[7] The Baseline Group, the United Workers’ Union (UWU) and a number of worksite delegates, voluntarily committed to adopting an interest based bargaining approach to negotiations and jointly participated in training conducted by the Commission. The Commission then providing assistance to the parties to work together to reach agreement adopting an interest-based problem solving approach.
Better off overall test
[8] The Commission is required to be satisfied that each employee would pass the better off overall test (BOOT) under the Agreement as compared to the relevant Award. Section 193(1) of the FW Act states:
“193 Passing the better off overall test
When a non greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”
(My emphasis)
[9] The approach to applying the BOOT was outlined by the Full Bench in Armacell Australia Pty and Others3:
“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement…”
[10] Hence, the application of the BOOT is an all-embracing and comprehensive test, requiring the identification of the terms which are more beneficial and those which are less beneficial for an employee. An overall assessment as to whether an employee would be better off under the Agreement is then undertaken by the Commission.4
[11] The applicant states that the Security Industry Award 2020 is the relevant reference instrument for the purposes of the better off overall test (BOOT) as required under s.186 of the Act.
Undertakings
[12] Following a number of concerns being raised by the Commission, the Baseline Group has provided written undertakings to address these concerns. The undertakings deal with the full time night shift rate and a number of other terms of the Agreement. A copy of the undertakings is attached in Annexure A.
[13] The Commission is satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The views of the bargaining representatives were sought as per s.190(4) of the Act. No issue with the undertakings has been raised by the bargaining representatives and the undertakings are taken to be a term of the Agreement as per s.191(1) of the Act.
[14] Taking into account the rates of pay and other provisions and entitlements under the Agreement (including the undertakings) for all classifications and balancing these benefits against the Award, I am satisfied that each Award covered employee and each prospective Award covered employee would be better off overall if the Agreement applied to the employees.
Explanation of the Agreement
[15] Section 186 of the Act sets out a number of general requirements for approval of an enterprise agreement, one of which is that an employer must ‘take all reasonable steps’ to ensure that the terms of the Agreement and the effect of those terms are explained to the relevant employees.5 A failure to comply with this pre-approval requirement will preclude the proposed Agreement from being an agreement capable of being approved by the Commission.6
[16] Having regard to the process set out in Mr Moss’s (the applicant’s General Manager) Statutory Declaration (F17) at questions [22-24], of which the UWU does not disagree,7 I am satisfied that reasonable steps were taken to explain the terms of the Agreement to employees, as per s.180(5).
[17] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
[18] The UWU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
[19] The Agreement is approved and in accordance with s.54(1)(a) of the Act will operate 7 days after the date of this decision. The nominal expiry date of the Agreement is 28 February 2023 as per clause 1.3 of the Agreement.
DEPUTY PRESIDENT
Annexure A
1 Clause 1.7.1 of the Agreement
2 s.576(2)(aa)
3 [2010] FWAFB 9985 at [41]
4 See also AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833; National Tertiary Education Union v University of New South Wales[2011] FWAFB 5163; Solar Systems Pty Ltd [2012] FWAFB 6397
5 S.186(2)(a) requires ‘genuine agreement’ which is defined in s.188(a)(1) and requires compliance with s.180(5) which requires an employer to take all reasonable steps to explain the terms of the Agreement and their effect
6 Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 Flick J at [91]
7 F18 at question [6]
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