Eagle Eyes Group Pty Ltd T/A Eagleyes Security

[2017] FWC 6036

[2017] FWC 6036

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.185—Enterprise agreement

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

COMMISSIONER GREGORY MELBOURNE, 16 NOVEMBER 2017

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(“Eagle Eyes.”) It is a single enterprise agreement.

[2] The Commission has, following receipt of the application, sought clarification from the Applicant about a range of matters to do with the Agreement and the processes involved in making the Agreement. The matter was subsequently set down for hearing on 22 September 2017 to enable further submissions and evidence to be provided in support of the application.

[3] However, United Voice, who were not a bargaining representative for the Agreement, also seek to be heard in regard to the application. The Applicant opposes the Union being heard on the basis that they were not a bargaining representative in the negotiations for the Agreement. This decision accordingly deals with whether it is appropriate for United Voice to be heard in regard to the application.

[4] Mr N. Arends and Mr H. Lewis from ER Strategies were given permission to appear on behalf of the Applicant under s.596(2)(a) on the basis that the matter involves a degree of complexity and their involvement might enable it to be dealt with more efficiently. Mr H. Pararajasingham and Mr M. Vance appeared on behalf of United Voice.

The Submissions and Evidence

United Voice

[5] United Voice submits that s.590 of the Act provides the Commission with the power to inform itself in regard to a matter in any way it considers appropriate. It also submits that it is eligible to represent the employees who would be covered by the proposed Agreement.

[6] It also makes reference to the recent Interim Decision of Commissioner Cambridge handed down in regard to the application for approval of the All Districts Coating Enterprise Agreement 2017. 1 It submits that it dealt with a similar situation where a Union was seeking to be heard in regard to an application for approval of an Agreement in circumstances where it was not a bargaining representative, and instead sought to be heard by virtue of the discretion provided under s.590 of the Act.

[7] United Voice submits that Commissioner Cambridge concluded in that decision that even though the Union had not been directly involved in the enterprise bargaining negotiations, and was not a formal bargaining representative, “the presence of a contradictor” 2 could be of assistance to the Commission in discharging its statutory obligations.

[8] United Voice continues to submit that a similar situation applies in this case, particularly given its extensive knowledge of the security industry, and the consequent assistance it can provide in understanding how the Agreement would apply “in a day-to-day manner.” 3 It also make reference to concerns set out in earlier correspondence which refer, in particular, to how the various proposed roster patterns contained within the proposed Agreement might sit with the terms and conditions contained in the Security Services Industry Award 2010,4 and whether the Commission is able to conclude that the requirements of the “better off overall” test can be satisfied as a consequence.

Eagle Eyes

[9] As indicated, Eagle Eyes submits United Voice was not a bargaining representative in the negotiations for the Agreement, and it opposes it being heard in regard to the application on that basis.

Consideration

[10] The issue concerning the right to be heard, other than as a bargaining representative, in dealing with an application made under s.185 of the Act was dealt with at length in the Full Bench decision in Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Ltd (“Collinsville”). 5 The Full Bench noted in that decision that it is accepted that the Act does not provide for a right of intervention in proceedings before the Commission by a non-party. However, s.590 of the Act does provide that the Commission may inform itself in relation to any matter in such manner as it considers appropriate. The Full Bench then continued to deal with the grounds relied upon by the Union as to why it should be heard.

[11] It indicated, in conclusion, that any right, interest, or legitimate expectation that might give rise to a right to be heard must be identified and understood against the framework of enterprise bargaining and agreement making established by the Act. In this context it noted that agreements are made principally between an employer and employees, and that enterprise agreements operate primarily at the enterprise level, and do not create rights of general application across an industry.

[12] It continued to indicate that whether a Union, that is not a bargaining representative, has a right to be heard in relation to an application for approval will depend upon the circumstances in each case.

[13] In the more recent Full Bench decision in Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd; Bauer Foundations Australia Pty Ltd; Avo Piling Management (NSW) Pty Ltd; Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd (“MGI Piling”) 6 of the Full Bench stated at [31]:

“Having regard to the framework of enterprise bargaining and agreement making established by the Act and the matters set out in the previous ten paragraphs, we are of the view that the CFMEU is not a person whose rights, interests or legitimate expectations will be directly affected by any decision to approve the new enterprise agreements. Taking the CFMEU’s case at its highest, including the fact that the CFMEU will not have standing, in its own capacity, to sue for a breach of the new enterprise agreements (assuming they are approved), the most that could be fairly said is that the CFMEU may be affected, indirectly or consequentially, by a decision to approve the new enterprise agreements. Such an impact is not sufficient to give the CFMEU a right to be heard in the application for the new enterprise agreements.” 7

[14] As indicated, United Voice also made reference to the recent Interim Decision of Commissioner Cambridge in support of its request to be heard. Commissioner Cambridge reviewed the relevant authorities at some length in that decision before concluding:

“The Commission is required to ensure that the Agreement complies with the Act, and the resolution of any concerns which have been identified should be conducted with transparency and appropriate rigour. Registered organisations with a legitimate interest in the industry and occupations covered by the Agreement may assist in the resolution of these issues of concern. Concerns about the BOOT in particular are likely to benefit from the presence of a contradictor. In this way, a process involving open, diligent and comprehensive scrutiny should provide for the correct outcome, and also enhance broader confidence in the Commission’s enterprise agreement approval role.” 8

[15] Commissioner Cambridge accordingly decided to grant standing for the Union “as an intervenor in the matter,” 9 indicating that it was accordingly entitled to appear and be heard in
respect of the proceedings. He concluded by indicating, in part, at [41]:

“An examination of these issues with the presence of a contradictor would assist the Commission in the discharge of its statutory function.” 10

[16] It is acknowledged that the framework of enterprise bargaining currently contained within the Act is intended to be based upon outcomes determined by the parties, and their nominated representatives, in individual workplaces through processes of bargaining and negotiation. In the present matter, United Voice is not a bargaining representative by virtue of the fact that it was not nominated as such by any of the employees to be covered by the proposed Agreement, and none of the employees are apparently members of the Union.

[17] However, I am satisfied that there are some circumstances associated with the present matter that warrant further consideration about whether it is appropriate for the Union to be heard. Firstly, the F16 Application confirms that there were no Union representatives involved in the agreement making process as bargaining representatives. However, it also indicates that there were no employee bargaining representatives involved in the process either. It can be presumed in the circumstances that the Agreement was not the product of a process of bargaining and negotiation between the employer and the employees, but was instead developed by the employer and simply presented to the employees for their consideration and approval. The F17 Employer’s Statutory Declaration indicates that this occurred when the proposed Agreement was emailed to the employees in April of this year.

[18] This is not intended to imply any criticism of what occurred, and these circumstances alone do not by any means mandate that the Union should now be heard in regard to the application. However, they do lend support to the view that the Commission’s consideration of the proposed Agreement might be assisted by now being provided with a broader perspective from an organisation that is involved in representing the views of employees.

[19] It is also noted that the proposed Agreement is one of several similar Agreements that are now under consideration by the Commission. They each contain some distinct features. The most common distinguishing features are the “Job Level” and “Wages” provisions. Instead of seeking to apply the Award classification structure and associated wage arrangements they instead propose a significantly different structure, with wage rates based on what are described as “Work Pattern Definitions”. Again, this is not intended to necessarily imply any criticism of what is proposed. However, the Commission has already sought clarification from the Applicant about a number of issues associated with these arrangements, and these considerations might well be assisted by United Voice also being heard in regard to them.

[20] The Agreement also contains a number of other variations from the Award structure, which the Commission is required to consider and assess, particularly in the context of the “better off overall test” assessment. It could also be assisted in this process by allowing United Voice to be heard, particularly given its evident history of involvement in the security industry.

[21] As indicated, s.590(1) of the Act provides that the Commission “…may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.” 11 I have decided, in conclusion, based on the particular circumstances involved in this matter, to provide United Voice with the opportunity to be heard in regard to the application on the basis that it might assist the Commission in carrying out its statutory responsibilities, particularly those concerned with the requirements of the “better off overall” test assessment.

[22] The Applicant’s representative has now, following the hearing on 22 September 2017, provided the Commission with a range of further written materials in support of the application, including proposed draft undertakings. As a consequence of this decision, I now intend to provide copies of those materials to United Voice on Monday, 20 November 2017. The Union is then required to advise the Commission by close of business on Wednesday 22 November 2017 whether it wishes to provide further submissions in regard to the application. Any further written submissions should be provided by 27 November 2017. However, if the Union wishes to be heard in regard to the application the matter will be set down for further hearing sometime in the week commencing 27 November 2017 in order that the application might now be progressed within a reasonable timeframe.

COMMISSIONER

Appearances:

H Lewis and N Arends for the Applicant.

H Pararajasingham and M Vance for United Voice.

Hearing details:

2017.

Melbourne (by telephone):

September 22.

 1   Re Warren[2017] FWC 4787.

 2 Ibid at [40].

 3   Transcript at PN160.

 4   MA000016.

 5   [2014] FWCFB 7940.

 6   [2016] FWCFB 2654.

 7   Construction, Forestry, Mining and Energy Union v MGI Piling (NSW) Pty Ltd; Bauer Foundations Australia Pty Ltd; Avo Piling Management (NSW) Pty Ltd; Piling Contractors Pty Ltd T/A Piling Contractors Pty Ltd[2016] FWCFB 2654 at [31].

 8   Re Warren [2017] FWC 4787 at [40].

 9 Ibid at [41].

 10   Ibid.

 11   Fair Work Act 2009 (Cth) s 590(1).

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