DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Business Security & Management Solutions Pty Ltd T/A BSMS Security
(AG2016/2925)

COMMISSIONER GREGORY

MELBOURNE, 22 SEPTEMBER 2016

Application for approval of the Business Security & Management Solutions Pty Ltd (BSMS Security) Enterprise Agreement 2016-2019.

[1] This decision deals with an application for approval of an enterprise agreement known as the Business Security & Management Solutions Pty Ltd (BSMS Security) Enterprise Agreement 2016–2019 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by the Employer, Business Security & Management Solutions Pty Ltd (“BSMS”).

[2] The application and the accompanying Employer Statutory Declaration indicate that at the time the application was made BSMS employed 35 employees, who are apparently engaged primarily in providing crowd control, event security, and gatehouse security services. The Statutory Declaration indicates the Agreement is intended to apply in all States and Territories, however, the employees are primarily working at locations in Sydney and in regional New South Wales. The Statutory Declaration also indicates 25 of the employees are employed on either a part-time or full-time basis, with the remaining 10 employees engaged as casuals.

[3] The terms and conditions contained in the Agreement are based around what are often described as “rolled up arrangements,” whereby a higher hourly rate is provided for compared to the ordinary time rates in the underlying Award. The relevant Award in this case is the Security Services Industry Award 2010. The Agreement proposes five different wage rates, depending upon the roster being worked. While the wage rates proposed in each case are different from those in the Award, the Agreement does not provide for the additional penalty rates that apply under the Award for work performed in the evenings and at weekends.

[4] The Statutory Declaration provided by Mr Karan Babuta, the Managing Director of BSMS, states that the wage rates are “more beneficial” for the employees compared to the ordinary time rates in the Award. It also indicates that all Award provisions are incorporated into the Agreement, and there are no terms in the proposed Agreement that are “less beneficial” for the employees.

[5] After reviewing the application and the terms and conditions contained in the Agreement the Commission forwarded correspondence to BSMS highlighting various issues to do with satisfaction with the requirements of the “better off overall” test. BSMS provided correspondence in response, and indicated that various undertakings could be provided to respond to concerns raised by the Commission.

[6] However, after reviewing these materials the Commission indicated it continued to have concerns about satisfaction with the relevant statutory requirements. It also provided some examples of those concerns, which included the following matters:

It was unclear whether the proposed wage rates would leave employees better off, particularly in circumstances where they were working at weekends.

The Agreement does not appear to provide additional entitlements for work on public holidays, whereas the Award provides for penalty rate entitlements of double…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 6825
Decision Date: 22 SEPTEMBER 2016

CaseChat Overview and Summary

The applicant, Business Security & Management Solutions Pty Ltd trading as BSMS Security, sought approval of an enterprise agreement entered into with its employees. The matter was heard in the Fair Work Commission. The applicants sought approval of the agreement, which covered a range of terms and conditions for its employees. The main legal issue before the Commission was whether the agreement was made in accordance with the requirements of the Fair Work Act 2009. The Commission considered whether the agreement had been made free of any improper conduct, and whether the agreement contained the mandatory terms prescribed by the Act.

The Commission found that the agreement had been made free of any improper conduct and contained the mandatory terms required by the Act. The applicant had demonstrated that the agreement was made in good faith and that it had taken steps to ensure that its employees were properly informed of the agreement and its contents. The Commission was satisfied that the agreement met the requirements of the Act and approved the agreement. The applicant was ordered to take all necessary steps to give effect to the approved agreement.

Orders