Brink's Australia Pty Ltd

[2016] FWCA 5750

[2016] FWCA 5750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Brink's Australia Pty Ltd
(AG2016/1570)

BRINK'S AUSTRALIA PTY LTD PERTH ENTERPRISE AGREEMENT 2016

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 25 AUGUST 2016

Application for approval of the Brink's Australia Pty Ltd Perth Enterprise Agreement 2016

[1] An application has been made by Brink’s Australia Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Brink's Australia Pty Ltd Perth Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers Ground Armoured employees based at Belmont performing cash in transit security guard work. 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.

[3] The Commission wrote to the applicant raising concerns in relation to:

● The nominal expiry date;

● The flexibility term;

● Shiftworkers;

● The better off overall test (BOOT).

Nominal Expiry Date

[4] The applicant has confirmed in writing to the Commission that the nominal expiry date will be 30 April 2020 and not 31 April 2020 as it appears in clause 2 of the Agreement.

Definition of shiftworkers

[5] The Commission wrote to the applicant noting that the Agreement allows for shiftworkers but does not define or describe a shiftworker as an employee who would be a shiftworker within the meaning provided in the Transport (cash in transit) Award 2010 (the Award).

[6] In response the applicant has provided an undertaking that the definition of “shiftworker” will mirror that of the Award. Pursuant to s.196(2) of the Act I am satisfied that the Agreement defines or describes a shiftworker for the purposes of the National Employment Standards concerning annual leave.

Flexibility Term

[7] The flexibility term at clause 27 of the Agreement does not meet the requirements of
s.203(2)(b) of the Act.  The term does not require an individual flexibility arrangement to be about permitted matters and to not include unlawful terms.

[8] Pursuant to s.203(2)(b) of the Act, the model consultation term at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement and is attached at Annexure A of this decision.

Better off overall test (BOOT)

Overtime and penalty rates

[9] The Commission wrote to the applicant with the concern that the higher base rates of pay under the Agreement may not be high enough to adequately compensate for the lower overtime rates as well as the lower penalty rates for weekend and public holiday work.

[10] The applicant has provided an undertaking that hours worked by employees on public holidays will attract the penalty rate equivalent to the Award rate. Further, the applicant has undertaken that in relation to weekend work specifically, and in relation to all hours worked generally, the rates paid will ensure that employees are better off under the Agreement.

Afternoon and night shifts

[11] The Commission wrote to the applicant noting that the Agreement does not offer night shift penalties which employees would otherwise be entitled to under the Award. Further, the Commission noted that while the Agreement provides for an afternoon shift penalty, it does not define “afternoon shift”. The Commission’s concern was that employees who work afternoon shifts under the Award may not be better off under that Agreement if they would not be eligible for the afternoon shift penalty under the Agreement.

[12] The applicant informed the Commission that currently it does not employ workers on afternoon or night shifts, but has provided an undertaking that if it introduces such shifts, the definitions in the Award will apply, as will the Award shift loadings.

Conclusion

[13] Taking into account the higher rates of pay under the Agreement when compared with the Award, and the undertakings provided, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

Undertakings

[14] The undertakings are taken to be a term of the Agreement and a copy is attached at Annexure B. The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act. The undertakings should be brought to the attention of the employees covered by the Agreement by the applicant.

[15] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[16] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 April 2020.

DEPUTY PRESIDENT

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Annexure A

Annexure B