Confido Security Pty Ltd

[2019] FWC 5102

[2019] FWC 5102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Confido Security Pty Ltd
(AG2019/385)

COMMISSIONER GREGORY MELBOURNE, 23 JULY 2019

Application for approval of the Confido Security Pty Ltd Casual Employees 2019 - 2022 Enterprise Bargaining Agreement.

[1] An application has been made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) for approval of an enterprise agreement known as the Confido Security Pty Ltd Casual Employees 2019 - 2022 Enterprise Bargaining Agreement (“the Agreement”). The Applicant is Confido Security Pty Ltd (“Confido”). The Agreement is a single enterprise agreement.

[2] The Agreement is intended to cover employees engaged in the security industry. The F17 Employer’s Statutory Declaration provided by Mr Kevin Mark Boyd, the Director of Confido, indicates that at the time the Agreement was voted on and made there were eighty people who were intended to be covered, with each employed on a casual basis. However, it also indicates that only nine employees participated in the vote to approve the Agreement.

[3] The application also indicates that the Employee Bargaining Representative was Ms Jodie Hughes, whose position is indicated to be “Operations Manager.” However, the Agreement indicates that it is intended to apply to any person employed in a classification set out in the Agreement. Clause 10 of the Agreement indicates that those classifications are “Unlicensed Attendant,” “Security Officer/Crowd Controller Level 1” and “Security Officer/Crowd Controller Level 2.” It is difficult to see in these circumstances how the coverage of the proposed Agreement could extend to a person employed in the position of Operations Manager. It is also difficult to see how a person with these managerial responsibilities could be an Employee Bargaining Representative.

[4] The Statutory Declaration also indicates at question 3.5 that the proposed Agreement does not contain any less beneficial terms and conditions when compared to those in the relevant reference instrument, being the Security Services Industry Award 2010 (“the Award”).

[5] After reviewing the application and the Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission wrote to the Applicant on 4 June 2019 highlighting a number of issues about which it sought further information or clarification. It was noted in this correspondence that the Agreement had not been signed. It also pointed to various pre-approval issues, together with a number of concerns about compliance with the requirements of the “better off overall test.” The Commission also indicated in that correspondence, “It is noted at the outset that there are issues that have been identified below on review of the Agreement, which raise concerns about whether the Agreement can ever be approved.”

[6] On 13 June 2019 the Commission received an email from the Applicant advising that a full response would be submitted at the “end of next week.” However, nothing was received by that time, and on 26 June 2019 the Commission again wrote to the Applicant noting that no response had been received. The Commission also indicated at that time:

“I have again reviewed the terms of the proposed Agreement and the concerns that the Commission has about whether it is able to be approved. One option in this context would be for the application to be set down for hearing to enable any further evidence and submissions to be provided in support of the application. We would obviously provide any bargaining representatives with the option of being involved in any such hearing.

Please advise whether you are interested in having the matter dealt with in that way. Otherwise we look forward to your written response to the matters foreshadowed previously.”

[7] There was again no response to this correspondence.

[8] On 16 July 2019 the Commission again forwarded an email to Mr Boyd. It stated:

“I refer to my emails dated 4 June and 26 June, and note that I am still awaiting a response.

On 13 June you did provide an email indicating that a full response would be provided by the end of the following week but, as indicated, nothing further has been received from you since that time.

I would be grateful if you could now provide a response at your earliest convenience. I would also indicate again that I do have concerns about whether the Agreement is able to be approved, but am prepared to consider any further evidence and submissions that you want to provide in support of the application.

However, given the delays in responding to my previous emails, in the event that nothing has been received from you by close of business on Friday, 19 July 2019 I will assume that you do not intend to proceed with the application and a decision will be issued dismissing the matter.”

[9] The Commission has again as at the date of this decision received no response from the Applicant to its most recent correspondence. Section 587 of the Act provides the Commission with broad powers to dismiss an application. The Applicant has made no attempt to pursue the application by providing appropriate responses to the Commission’s correspondence. The terms and conditions contained in the proposed Agreement also suggest, prima facie, that the application has no reasonable prospects of success. The application is accordingly dismissed, effective from the date of this decision.

COMMISSIONER

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