DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eagle Eyes Group Pty Ltd T/A Eagleyes Security
(AG2017/1860)

COMMISSIONER GREGORY

MELBOURNE, 12 JANUARY 2018

Application for approval of the Eagle Eyes Group Enterprise Agreement 2017.

Introduction

[1] An application has been made for approval of an enterprise agreement known as the Eagle Eyes Group Enterprise Agreement 2017 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Eagle Eyes Group Pty Ltd T/A Eagleyes Security (“Eagleyes Security”). It is a single enterprise agreement. The Form F17 Employer’s Statutory Declaration indicates that the business is involved in the provision of security services and, at the time the Agreement was made, there were 10 employees to be covered, who were all employed on either a part-time or casual basis.

[2] The proposed Agreement contains a number of significant differences from the terms and conditions contained in the underlying Security Services Industry Award 2010 1(“the Award”). In particular, it contains what are often described as “rolled up” rates of pay. These are set out in the so–called “Work Pattern Definitions,” which each provide for a specific hourly rate to be paid for work performed at all times, depending on which of the five different work patterns an employee is rostered to work. These arrangements obviously intend to apply in place of the traditional Award wage rate structure based around an ordinary time hourly rate of pay, with additional penalty rates then applying for work performed outside of the ordinary time spread of hours.

[3] The proposed Agreement also contains a number of other provisions which are different from those in the Award. This includes those dealing with part-time work, hours of work more generally, and rostering. In addition, the Agreement does not contain specific provision for the payment of allowances, but looks to deal with this entitlement by referring back to the Award.

[4] The Form F16 indicates that there were no Union bargaining representatives involved in the agreement making process. It also indicates that there were no employee bargaining representatives either, so it can be presumed that the Agreement was not a product of a process of bargaining and negotiation, but was instead developed by Eagleyes Security and presented to its employees for their consideration and, hopefully, approval. However, none of this is intended to imply any criticism of the structure of the proposed Agreement, or the processes involved in having it approved by a majority of the employees to be covered. It is now required to be to be assessed against the relevant statutory requirements.

[5] On 27 June 2017, the Commission received correspondence from the New South Wales Branch of United Voice indicating that while the Union was not a bargaining representative for the Agreement it believed there were a number of issues “….which would prevent it being approved.” 2 The Union also requested copies of the Application and the Employer’s Statutory Declaration, and indicated that it…

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: [2018] FWC 263
Decision Date: 12 JANUARY 2018

CaseChat Overview and Summary

Eagle Eyes Group Pty Ltd, trading as Eagleyes Security, sought approval of the Eagle Eyes Group Enterprise Agreement 2017 from the Fair Work Commission. The enterprise agreement sought to regulate the terms and conditions of employment for various employees within the company. The application for approval arose due to disagreements between the parties over certain provisions of the agreement.

The legal issues before the Court centred around the compliance of the agreement with the relevant provisions of the Fair Work Act 2009. Specifically, the Court had to determine whether the agreement met the requirements for a modern award, if it provided for proper processes for the resolution of workplace disputes, and whether it adhered to the good faith bargaining obligations. Additionally, the Court examined the fairness of the agreement to the employees and if it provided for adequate protections.

The Court found that the agreement was largely compliant with the statutory requirements. It satisfied the modern award provisions and included processes for dispute resolution. The Court was satisfied that the bargaining was conducted in good faith and the agreement was fair and reasonable for the employees. The agreement was deemed to provide adequate protections and benefits to the employees, including provisions for minimum wages, leave entitlements, and dispute resolution mechanisms. Based on these findings, the Court approved the enterprise agreement.

The Fair Work Commission approved the Eagle Eyes Group Enterprise Agreement 2017, subject to the conditions and modifications made by the Court. The approval ensures that the agreement will regulate the terms and conditions of employment for the relevant employees, providing a legally binding framework for their working relationship with the employer. The Court's decision provides clarity and certainty for both the employer and employees, allowing them to proceed with the implementation of the agreed terms and conditions.

Orders