G4S Custodial Services Pty Ltd

[2022] FWCA 988

[2022] FWCA 988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

G4S Custodial Services Pty Ltd

(AG2022/591)

G4S Mount Gambier Prison Enterprise Agreement 2021

Corrections and detentions
COMMISSIONER PLATT	ADELAIDE, 22 MARCH 2022

Application for approval of the G4S Mount Gambier Prison Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the G4S Mount Gambier Prison Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by G4S Custodial Services Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 9 March 2022.

1. On 15 March 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·   Clause 7.1.1 of the Agreement provides that annual leave will accrue and be credited to employees on a pro rata basis each four-weekly period. Section 87(2) of the Act, however, provides that an employee’s entitlement to paid annual leave accrues progressively during a year of service.

·   Clause 7.1.9 of the Agreement provides for the cashing out of leave, however, does not specify that an employee must be paid at least the full amount that would have been payable to the employee had the employee taken the leave that the employee had forgone. This appears to be inconsistent with s.92(2)(c) of the Act.

1. Clause 1.6.4 of the Agreement acts as an effective NES precedence clause, in that it states that where a provision of the Agreement is detrimental to an employee compared to the NES, it will be of no effect. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 17 March 2022. The undertaking deals with the following topics:

·   Any Operational Support Officers (OSOs) who are also qualified and authorised to work as Correctional Officers (COs) will be paid the appropriate Agreement CO rate when rostered to do CO work.

·   If the company were to change its rostering arrangements such that they engaged employees to work permanently at night, the company will ensure that the total remuneration received by any such employee in any pay period is at least $1 more than the minimum required under the Corrections and Detention (Private Sector) Award 2020 (the Award).

·   If any trainees, casuals, or part-time employees are regularly required to work weekends, the company will ensure that the rates of pay provided are no less favourable than the Award.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The United Workers’ Union (UWU), being a 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

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