Dominance Enterprises Pty. Ltd. T/A Dominance Guardian Services

[2014] FWCA 4448

[2014] FWCA 4448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Dominance Enterprises Pty. Ltd. T/A Dominance Guardian Services
(AG2014/5840)

DOMINANCE GUARDIAN SERVICES - ENTERPRISE AGREEMENT - 2014

Security services
COMMISSIONER GREGORY	MELBOURNE, 11 JULY 2014

Application for approval of the Dominance Guardian Services - Enterprise Agreement - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Dominance Guardian Services - Enterprise Agreement - 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Dominance Enterprises Pty. Ltd. T/A Dominance Guardian Services. The agreement is a single-enterprise agreement.

[2] After reviewing the application clarification was sought from the Applicant’s representative about a range of issues. Firstly, the proposed Agreement intends to provide loaded hourly rates to the employees depending upon whether an employee is rostered to work on weekdays, weekends or public holidays. An additional casual loading is also provided for casual employees rostered in this way. However, while the rates proposed for work rostered on weekdays appear to satisfy the requirements of the “better off overall test” this was not necessarily evident in regard to the rates intended to be provided for work rostered on weekends and on public holidays.

[3] Further clarification was also sought from the Applicant’s representative about the intended span of ordinary hours provided for by the proposed Agreement, as well as the provisions concerning the entitlement to overtime payments.

[4] When pay rates are structured in the way proposed in this Agreement any assessment of those arrangements, as required by the “better off overall” test, will depend in large part on when an employee is actually rostered to work. For example, if an employee is rostered to work for the majority of their hours on weekdays then they will most likely be better off under the terms of the proposed Agreement, when compared with the entitlements that would otherwise apply if they remained covered by the underlying Security Services Industry Award 2010. However, if a significant proportion of an employee’s hours are rostered on weekends, or on public holidays, then this is less likely to be the case, given that the loaded rate for work at those times is less than the rates that would otherwise apply under the Award.

[5] The Applicant’s representative subsequently provided a response to the issues raised by the Commission, and provided further details about how the hourly rates proposed in the Agreement had been calculated. The employer also agreed to provide an additional undertaking as part of its response to the issues raised by the Commission. The undertaking, in part, requires regular audits to be conducted by the employer, which compare the entitlements provided to the employees under the terms of the proposed Agreement with the entitlements those employees would otherwise have received had they remained employed under the terms and conditions contained in the Security Services Industry Award 2010. In addition, in the event of any shortfall under the terms of the Agreement the employer is required to ensure this shortfall or deficiency is made up to the employee(s) in the next pay cycle, as well as making sure the shortfall or deficiency does not occur again. Details of the audit process and its outcome are also to be provided to the employees, if requested, within three days of that request being made.

[6] The employer has also undertaken to ensure that the average hours worked by employees across the different weekday, weekend and public holiday rosters align with the percentage figures contained in the undertaking.

[7] I have accepted the undertakings proposed by the employer and they will now form part of the Agreement. Copies of those undertakings are also attached to this decision.

[8] I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and s.190, as relevant to this application, have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 July 2014. The nominal expiry date of the Agreement is 17 July 2018.

COMMISSIONER

Attachment A:

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