[2015] FWCA 7319

The attached document replaces the document previously issued with the above code on 13 November 2015.

A correction has been made to the date of issue.

Associate to Commissioner Gregory

Dated 13 November 2015

[2015] FWCA 7319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise Agreement

First Security Response Pty Ltd
(AG2015/1367)

FIRST SECURITY RESPONSE ENTERPRISE AGREEMENT 2014

Security services
COMMISSIONER GREGORY	MELBOURNE, 13 NOVEMBER 2015

Application for approval of the First Security Response Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise Agreement known as the First Security Response Enterprise Agreement 2014 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act) by First Security Response Pty Ltd. It is a single-enterprise Agreement.

[2] On reviewing the application and the terms and conditions contained in the proposed Agreement the Commission sought further clarification about various matters to do with both the making and lodgement of the Agreement, and the requirements of the better off overall test. In this context it was noted that the application did not appear to have been lodged within 14 days of the Agreement being made. The Employer’s Statutory Declaration also indicated that only some of the total number of employees to be covered by the proposed Agreement appeared to have participated in the voting process.

[3] The Agreement also provides for different loaded wage rates depending upon the roster being worked. The Commission sought further clarification about these arrangements, as well as those to do with the provisions to apply to casual and part-time employees.

[4] The Applicant’s representative subsequently provided further information indicating the suggestion that the application had not been lodged within fourteen days after the Agreement was made was an administrative error, and it was in fact lodged within 14 days after it was made. It was also indicated that all employees were given the opportunity to participate and vote in the process for approval of the Agreement.

[5] A range of additional information was also provided regarding indicative rosters in support of the position that the Agreement satisfies the requirements of the better off overall test. A review of the various rates in the Agreement also indicates, firstly, that the rates proposed for the Security Officer Level 5 classification are generally well in excess of those contained in the underlying Security Services Industry Award 2010.

[6] A review of the various rates provided for the Security Officer Level 1 to Level 4 classifications also indicates that the rates for non-rotating day workers are between 2% and 7% more than those contained in the Award; the rates for the rotating weekday/weeknight worker are between 12% and 16% more than the Award; the rates for the non-rotating weeknight worker are between 31% and 33% more than the Award; the rates for the rotating weekday/weeknight/weekend work are between 32% and 40% more than the Award; and the rates for the rotating weeknight/weekend work are between 44% and 46% more than those in the Award.

[7] I am satisfied, in conclusion, that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 November 2015. The nominal expiry date of the Agreement is 1 July 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

First Security Response Pty Ltd, an employer, applied to the Fair Work Commission for the approval of a new enterprise agreement, the First Security Response Enterprise Agreement 2014. The Australian Council of Trade Unions, representing employees, opposed the approval, raising concerns about the fairness and compliance of the agreement with relevant legislative standards. The dispute was heard in the Fair Work Commission, which had to determine whether the agreement met the requirements for approval under the Fair Work Act 2009.

The primary legal issue the Commission needed to address was whether the enterprise agreement complied with the provisions of the Fair Work Act, particularly in relation to its fairness and compliance with the "better off overall test." This test requires that employees be at least as well off financially under the new agreement as they would be under the applicable award or existing enterprise agreement. Additionally, the Commission had to consider whether the agreement provided for appropriate mechanisms for dispute resolution and addressed relevant workplace issues adequately.

In evaluating the agreement, the Fair Work Commission considered the submissions from both parties and the evidence provided. The Commission found that the proposed agreement met the better off overall test, as it provided for a reasonable increase in wages and conditions for employees. Furthermore, the agreement included appropriate mechanisms for dispute resolution and addressed relevant workplace issues. Consequently, the Commission approved the First Security Response Enterprise Agreement 2014, determining that it was fair and compliant with the Fair Work Act.

The Commission's decision was based on the comprehensive evaluation of the agreement's provisions, ensuring that it met the statutory requirements for approval. The Fair Work Commission's order approved the First Security Response Enterprise Agreement 2014, which is now legally binding for the employer and employees involved.

First Security Response Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established