Frosts Security Locksmiths Pty Ltd
[2025] FWCA 300
•24 JANUARY 2025
| [2025] FWCA 300 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Frosts Security Locksmiths Pty Ltd
(AG2024/5056)
FROST SECURITY LOCKSMITHS PTY LTD WORKPLACE AGREEMENT 2025
| Locksmith industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 24 JANUARY 2025 |
Application for approval of the Frost Security Locksmiths Pty Ltd Workplace Agreement 2025
Introduction
Frosts Security Locksmiths Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Frost Security Locksmiths Pty Ltd Workplace Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Manufacturing and Associated Industries and Occupations Award 2020 (the Award).
Regulation 2.06 Requirements
The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.
Sufficient Interest and Sufficiently Representative
The F17 Declaration submitted by the Employer did not include information about whether employees have a sufficient interest in the terms of the agreement or were sufficiently representative of the employees it intends to cover. Consequently, the Commission was unable to make a determination on these matters.
The Employer subsequently provided submissions which included information relevant to the issue of sufficient interest and sufficiently representative. Based on those submissions I am satisfied that the employees requested to approve the agreement by voting for it have a sufficient interest in the terms of the agreement and are sufficiently representative.
Delegates’ Rights Term
The Agreement does not contain a delegates’ rights term, as required by s. 205A(1) of the Act. Pursuant to s. 205A(2) of the Act, the workplace delegates’ rights term from the Award is taken to be a term of the Agreement. A copy of the workplace delegates’ rights term can be found in Schedule E.
Flexibility Term
Clause 10(n) of the Agreement provides that an individual flexibility agreement (IFA) may be terminated by the employer or employee giving no more than 13 weeks written notice. This appears to be inconsistent with s.203(6) of the Act, which provides that an IFA may be terminated by either the employer or employee giving written notice of not more than 28 days.
The Employer provided an undertaking to address this issue.
Model Consultation Terms
The Agreement does not contain all of the requisite consultation terms, as required by s.205(1) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement. A copy of the model consultation terms can be found in Schedule F.
National Employment Standards (NES) and Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the Award:
Clause 18.2 of the Agreement provides that an employee must notify the employer within one hour of the employee’s normal commencement time or by 9am on the day of the absence. This may be inconsistent with s.107 of the Act, which provides for notice to be given as soon as practicable, which may be a time after the leave has started.
Clause 19 of the Agreement provides that an employee can take carers leave to provide care for immediate family members who are ill or injured. However, it appears to omit the entitlement to take carers leave due to unexpected emergencies and to care for members of the employee’s household. This is inconsistent with s.97 of the Act.
Clause 20 of the Agreement provides that an employee may take compassionate leave on the death illness or injury of an immediate family member as identified in clause 19. It does not include reference to a member of the employee’s household. The clause also does not refer to stillbirth or miscarriage and as such may be read as being exclusive of these two occasions. This is inconsistent with s.104 of the Act.
The Agreement is silent regarding minimum engagement for part-time employees. The Award entitles part-time employees to a minimum of 4 consecutive hours per shift or no less than 3 hours by agreement in clause 10.2.
Clause 12.1(b) of the Agreement allows the employer to change the regular days and hours of a part-time employee after giving reasonable notice. Reasonable notice is deemed to mean at least 24 hours. Clause 10 of the Award provides that changes to a part-time employee’s agreed hours can only occur by agreement between the parties. Under clause 10.8 of the Award, work performed in excess of a part-time employee’s agreed ordinary hours attracts overtime penalties.
Clause 12.1(c) of the Agreement provides that casual employees are paid for a minimum number of 2 hours per engagement. The Award provides a minimum engagement of 4 hours under clause 11.2.
Clause 12.1(c) of the Agreement provides that casual employees are paid a 25% loading on ordinary hours. Clause 11.1 of the Award provides that the casual loading constitutes an employee’s all-purpose rate and as such is payable on a compounding basis for overtime.
Clause 22 of the Agreement states that if an employee is required to work on a Public Holiday the employee may make an application to the employer for the payment of overtime in accordance with sub-clause 16.4(b). This appears to be a typographical error and is likely to be referencing clause 16.5(b).
At clause 16.5(b) of the Agreement, an employee who works on a public holiday is entitled to 200% of the ordinary hourly rate under the Agreement, provided the Employer approves the Employee’s application for the additional rates. However, under the Award, an employee is entitled to 250% of the ordinary hourly rate when working overtime on a public holiday in accordance with clause 32.7, and 250% when working during ordinary hours on a public holiday in accordance with clause 33.1(b).
Section 190 Undertakings
The employer provided written undertakings to address the above NES and BOOT issues. A copy of the undertakings is attached in Schedule D. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 January 2025. The nominal expiry date of the Agreement is 31 January 2027.
DEPUTY PRESIDENT
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