First Security Response Pty Ltd

[2013] FWC 1842

[2013] FWC 1842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

First Security Response Pty Ltd
(AG2013/5472)

DEPUTY PRESIDENT BARTEL ADELAIDE, 25 MARCH 2013

Application for approval of the FSR Personnel Enterprise Agreement 2013 - 2017 - dismissed.

[1] An application for approval of an enterprise agreement known as the FSR Personnel Enterprise Agreement 2013 - 2017 (the Agreement) has been made First Security Response Pty Ltd (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is an application for a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) issued a Statement of Preliminary Findings to the employer on 7 March 2013. The relevant extracts from that Statement are as follows:

“Pre-approval matters

[2] Section 181 of the Fair Work Act 2009 (the Act) provides that:

‘(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.

(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.’

[3] As such, a period of 21 days must elapse between the issuing of the last notice of representational rights (NRR) and a request to the employees who will be covered by the Agreement to vote for it. On the information provided by the employer in Q2.8 of the Form F17 Employer Declaration, it appears that the NRR was issued on 25 January 2013 and the request that employees vote to approve the Agreement was made on 7 February 2013, a period of 13 days.

[4] Section 180 of the Act provides that employees must have access to the Agreement for a period of 7 days (the access period) prior to a request that they vote to approve the Agreement. On the basis of the information supplied by the employer in Q2.5, 2.6 and 2.8 of the Form F17, it appears that the request for employees to approve the Agreement was made on the same day as the Agreement was provided to the employees.

[5] Having regard to the above, it is my preliminary view that the pre-approval steps required by the Act have not been met.

Better off overall test (BOOT)

[6] In order to approve the Agreement, FWC must be satisfied that the Agreement passes the better off overall test (BOOT). That is, FWC must be satisfied that each award covered employee and each prospective award covered employee would be better off overall if the Agreement applied, rather than the relevant modern award, in this case the Security Services Industry Award 2010. 1 I note that the employer has indicated at Q3.4 of the Form F17 that the Agreement does not contain any terms or conditions of employment that are more beneficial than the modern award. It is assumed that this reflects an error, given that certain casual rates in the Agreement are more beneficial than the Award.

[7] Nonetheless, in considering the Agreement as a whole, there are a range of rates and conditions that are less beneficial than the modern award. These are:

• A lower minimum engagement for casual and part time employees (3 hours in the Agreement compared to 4 hours in the modern award)



• No allowances payable under the Agreement (compared to the allowances prescribed in cl 15 of the modern award)



• No requirement for the employer to provide a torch and uniform to an employee required to use/wear such in the course of employment (compared to cl 15.11 of the modern award)



• The following rates of pay are lower in the Agreement than in the Award:

All casual rates other than for the day span of 0600 hrs to 1800 hrs. That is, the casual rates for night span (0000 to 0600 hrs and 1800 to 2400 hrs), Saturdays, Sundays and public holidays are lower than the corresponding modern award rates;

All permanent part time and full time employee rates are lower under the Agreement than the corresponding rates in the modern award for day span, night span, Saturdays, Sundays and public holidays.

[8] Apart from the casual rates of pay for the day span there does not appear to be any other benefits in the Agreement as compared to the modern award. In this regard I also note that there is no provision for any increase in the rates of pay over the 4-year life of the Agreement.

[9] Having regard to the above it is my preliminary view that the Agreement does not meet the BOOT.”

[3] A hearing was held on 22 March 2013. Mr Vickery and Ms Tsarus, the owners of the business, attended at that time. It was conceded that the pre-approval requirements of the Act, as identified in the Statement of Preliminary Findings, had not been met. These provisions of the Act are mandatory and the Commission does not have power to vary or waive the relevant requirements. As such the Agreement does not comply with the pre-approval steps and therefore cannot be approved.

[4] Even if the pre-approval steps had been undertaken in accordance with the Act a range of undertakings would be required to be given by the employer in order for the Agreement to meet the better off overall test. I understand from Mr Vickery’s submissions that the employer is not in a position to give the required undertakings due to the competitive environment in which it operates.

[5] The application for approval of the Agreement is dismissed.

DEPUTY PRESIDENT

Hearing details:

Adelaide

22 February 2013

Appearances:

Mr Vickery and Ms Tsarus for the applicant

 1   Sections 186(d) and 193 of the Act.

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