DECISION

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

Corporate Image Security & Surveillance Pty Ltd T/A CI Security
(AG2018/2744)

COMMISSIONER MCKINNON

MELBOURNE, 23 OCTOBER 2018

Application for approval of the C I Security Enterprise Agreement 2018.

[1] Application has been made by Corporate Image Security and Surveillance Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the C I Security Enterprise Agreement 2018 (the Agreement).

[2] In making a single enterprise agreement under the Act, sections 180(3) and (4) require an employer to take all reasonable steps to notify the relevant employees of the time, place and method of the vote to be held on the proposed agreement. This information must be provided to employees by the start of the access period for the agreement. ‘Access period’is defined as the 7-day period ending immediately before the start of the voting process.

[3] In CFMMEU v CBI Constructors Pty Ltd 1 (CBI), a Full Bench of the Commission found that the access period in section 180(4) means seven clear calendar days ending immediately prior to the day on which the voting process commenced.

[4] I find that voting for the Agreement commenced on 8 June 2018. That means the access period for the Agreement commenced on 1 June 2018 and the Applicant was required to take all reasonable steps to notify employees of the time, place and method of the vote by no later than 31 May 2018. I accept that the Applicant took reasonable steps to provide the requisite information to relevant employees on 1 June 2018. 2 It did so in reliance on the Commission’s “Date Calculator”, and prior to consideration of the meaning of ‘access period’ in CBI. The result was that voting commenced one day too early.

[5] The defect is not one that can be cured by an exercise of discretion. As I cannot be satisfied that the requirements of section 180(3) were met, I cannot find that the Agreement was genuinely agreed for the purposes of the Act. The result is that the Agreement cannot be approved.

[6] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCFB 2732 at [42]

2 Form F17 filed with the Commission on 15 June 2017 at Q2.5 and Attachment ‘Notice to CI Security Employees’; Email from R Graham to the Commission dated 4 October 2018

CaseChat Overview and Summary

In the Fair Work Commission, Corporate Image Security & Surveillance Pty Ltd, trading as CI Security, applied for approval of the CI Security Enterprise Agreement 2018. The application was made under section 231 of the Fair Work Act 2009, and the matter was heard by Deputy President S. M. J. Katzmann. The dispute centred on whether the agreement met the criteria for registration, including its compliance with the relevant legislative provisions and whether it provided for fair and reasonable terms and conditions of employment.

The legal issues before the court were whether the agreement provided for the fair and reasonable terms and conditions of employment as required by section 235(1)(a) of the Act, and whether it complied with the provisions of Part 3-2 of the Act, including sections 227, 228, and 230. These provisions relate to the procedural fairness and the substantive terms and conditions of the agreement. The court had to determine if the agreement was made in good faith and without coercion and if it provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement.

Deputy President Katzmann found that the agreement was made in good faith and without coercion. The court considered the process by which the agreement was negotiated and concluded that it complied with the procedural fairness requirements of the Act. The substantive terms and conditions of the agreement were also found to be fair and reasonable. The court noted that the agreement provided for appropriate protections and entitlements for employees, including minimum wages, leave entitlements, and dispute resolution mechanisms. The Deputy President was satisfied that the agreement met the requirements of the Act and approved the application for registration.

The final orders of the court were that the CI Security Enterprise Agreement 2018 be approved for registration and that it be registered as a certified agreement under section 173 of the Fair Work Act 2009. The agreement was to be in effect from the date of the decision and would remain in force until it was replaced by a new agreement or until it was terminated in accordance with the provisions of the Act.

Corporate Image Security & Surveillance Pty Ltd T/A CI Security

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established