G4S Custodial Services Pty Ltd

[2018] FWCA 470

[2018] FWCA 470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

G4S Custodial Services Pty Ltd
(AG2017/4265)

G4S CUSTODIAL SERVICES PTY LTD. (PORT PHILLIP PRISON) CORRECTIONAL SERVICES WORKPLACE AGREEMENT 2017

Corrections and detentions
COMMISSIONER GREGORY	MELBOURNE, 23 JANUARY 2018

Application for approval of the G4S Custodial Services Pty Ltd. (Port Phillip Prison) Correctional Services Workplace Agreement 2017.

[1] An application has been made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by G4S Custodial Services Pty Ltd (“G4S”) for approval of an Enterprise Agreement known as the G4S Custodial Services Pty Ltd. (Port Phillip Prison) Correctional Services Workplace Agreement 2017 (“the Agreement”). It is a single Enterprise Agreement.

[2] The Agreement is intended to cover around 540 employees employed by G4S in Victoria in the classifications set out in the Agreement in regard to work performed at the Port Phillip Prison and at the Saint Augustine’s Ward at St Vincent’s Hospital, or at any other places where the employees are directed in the course of their duties.

[3] After reviewing the application and the Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought further clarification from G4S about various matters. G4S subsequently proposed that the Commission might be assisted in its consideration of the application if a conference was convened to deal with any issues the Commission wanted further clarification about. This suggestion was supported by the Victorian Branch of the Community and Public Sector Union (“CPSU”), who were a Union bargaining representative for the Agreement. The Commission took up this offer and a conference was held on 22 January 2017. The Commission was also assisted by written responses that G4S had previously provided about various matters raised by the Commission in earlier correspondence.

[4] It is also noted that the Commission received further correspondence from some employees to be covered by the proposed Agreement. It made reference to various matters. The Commission subsequently responded to that correspondence and I am satisfied through the processes that followed that those employees have had an adequate opportunity to raise the matters they wished to have considered.

[5] The Commission also now makes reference to the following matters that were specifically considered in dealing with the application.

•  Sub clause 21.5(c) of the proposed Agreement provides that, “A maximum of 76 hours paid personal leave may be taken as carer’s leave in anyone year.” 1 However, the National Employment Standards make clear in s.96(2) of the Act that an employee’s entitlement to paid personal/carer’s leave accumulates from year-to-year and there is no limit on the amount of leave that can be taken during the course of the year, providing any requirements to justify the requirement to take leave have been satisfied. However, it is also noted that Clause 21 “PERSONAL LEAVE” in the Agreement provides that employees are entitled to paid personal leave in accordance with the NES. This makes clear that the National Employment Standards prevail to the extent that there is any inconsistency with the provisions in the Agreement.

•  Sub clause 20.8(a) is designed to ensure that additional overtime is allocated equitably among those employees who are wanting to work additional hours. However, sub clause 20.8(b) is also designed to deal with some limited circumstances whereby employees are taking personal leave but then obtaining additional overtime shifts. It is understood that this is a provision which has been included in the Agreement for the first time. While its inclusion might not be supported by all employees I am satisfied that its terms are not in conflict with any of the provisions contained in the National Employment Standards.

•  Sub clause 20.8(b)(ii) also provides that any employee who takes personal leave without pay, without the approval of the General Manager, will be removed from the “call-in list” 2 for the remainder of the relevant pay period. The call-in list is part of the arrangements in place to ensure equitable access among the employees to additional overtime hours. Some concerns have been raised about the process of obtaining approval from the General Manager to take unpaid personal leave in circumstances where this requirement might occur at short notice due to an unexpected health condition. G4S indicated in response that this sub clause will be applied sympathetically and it would be possible, for example, for approval to be obtained retrospectively where an employee provides an appropriate medical certificate in support of their absence.

•  G4S and the CPSU provided the Commission in the conference with some additional explanation about how the hours of work provisions contained in clause 20, “HOURS AND ALLOCATION OF WORK” operate. It is noted, firstly, that there are a variety of roster cycles in place, depending on the particular requirements of the different aspects of the Prison’s operation. In some cases they are simply based on a weekly roster cycle, however, in other areas they are based, for example, around roster cycles operating over nine, eleven, fifteen and, in some cases, thirty-six weeks. However, in each case they are based around an average of thirty-eight hours being worked over the full fifty-two weeks in any year. It is also noted that there are a variety of shift arrangements being worked but where additional hours are required to be worked over and above those rostered shifts, then the provisions of sub clause 20.9 provide that additional overtime entitlements apply. It is also noted that sub clause 20.1(c) makes reference to employees not being required to work more than fifteen hours in any 24-hour period “other than in an operational emergency.” 3 It follows from this that where excessive additional hours are worked employees are still required to have a 10 hour break between shifts, and would not be required to commence their next rostered shift until 10 hour break has been taken. It was also noted that the employees are generally satisfied with the different shift arrangements that apply, and the opportunities that exist to be able to work shift arrangements that are best suited to both their work requirements and their obligations outside of work.

•  It is also noted that the rates of pay in the Agreement are based on long-standing annualised salary arrangements, which are inclusive of penalty rates and shift loadings, and are based on a rostered average of 38 hours per week over a 52 week period. As indicated, these annualised rates are based on long-standing assumptions about shift work, weekend work and public holidays, and a variety of other considerations. All employees are paid the same rate for each classification level as a consequence, regardless of the roster being worked, although additional leave entitlements apply to employees working longer shifts. It is also noted that the rates of pay provided for in the Agreement are well in excess of those in the underlying Corrections and Detention (Private Sector) Award 2010 (“the Award”). 4

[6] Section 186 of the Act requires that the Commission must be satisfied that an Agreement passes the “better off overall test.” The requirements of the test are dealt with in s.193(1) in the following terms:

“193 Passing the better off overall test

When a non greenfields Agreement passes the better off overall test

(1) An enterprise Agreement that is not a greenfields Agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each Award covered employee, and each prospective Award covered employee, for the Agreement would be better off overall if the Agreement applied to the employee than if the relevant modern Award applied to the employee.” 5

[7] Section 193(6) also provides that the “test time” 6 is the time when the application for approval is made under section 185. It is well established that the application of the “better off overall” test requires identification of the terms and conditions in a proposed Agreement that are more beneficial for the employees, and those which are less beneficial, with an overall assessment then being made about whether the employees would be “better off overall” under the Agreement.

[8] The Employer’s Statutory Declaration makes reference to a number of entitlements in the Agreement that are more beneficial compared to those contained in the underlying Award. It is also noted that the wage rates in the Agreement are between 41% and 83% above those in the underlying Award. I am satisfied, in conclusion, based on a review of the conditions contained in the Agreement, and after considering the additional explanation provided in the conference, that the requirements of the better off overall test have been satisfied.

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

[10] The Victorian Branch of the Community and Public Sector Union, being a Union bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[11] The Agreement is approved and in accordance with s.54 of the Act will operate from 30 January 2018. The nominal expiry date of the Agreement is 31 December 2019.

COMMISSIONER

 1   Proposed G4S Custodial Services Pty Ltd. (Port Phillip Prison) Correctional Services Workplace Agreement 2017 at cl 21.5(c).

 2   Ibid at cl 20.8(b)(ii).

 3   Ibid at cl 20.1(c).

 4   MA000110.

 5   Fair Work Act 2009 (Cth) s 193.

 6   Fair Work Act 2009 (Cth) s 193(6).

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