GHM Security Services Pty Ltd

[2014] FWCA 2430

[2014] FWCA 2430

This document replaces the Decision ([2014] FWC 2321) signed on 9 April 2014 in its entirety.

Refiled due to a reference error.

Cassidy Vines

Associate to Commissioner Gregory

Dated 10 April 2014

[2014] FWCA 2430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GHM Security Services Pty Ltd
(AG2013/12260)

GHM SECURITY SERVICES PTY LTD ENTERPRISE AGREEMENT 2013

Security services
COMMISSIONER GREGORY	MELBOURNE, 9 APRIL 2014

Application for approval of the GHM Security Services Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the GHM Security Services Pty Ltd Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by GHM Security Services Pty Ltd. The Agreement is a single-enterprise agreement.

[2] On reviewing the application the Commission was concerned to obtain further clarification about a number of aspects of the proposed Agreement. These matters involved:

• the Notice of Employee Representational Rights. The application indicated the notice was given to employees on 28 November 2013, and that voting for the Agreement commenced on 14 December 2013, 16 days later. Section 181(2) of the Act requires that 21 days be provided between the time a notice is given to employees and voting on the Agreement commences. The application appeared to indicate this requirement had not been satisfied;



• the fact a signed copy of the Agreement was not provided with the application; and



• that the proposed wage rates to be paid to employees working on Sunday and during the night shift appeared to be less than those provided for in the underlying Security Services Industry Award 2010. This appeared to create the potential for employees required to work at those times to be disadvantaged when covered by the Agreement compared with the provisions contained in the Award.

[3] The matter was set down for hearing to deal with these issues, however, the Applicant requested additional time to respond to the matters raised by the Commission. This request was granted. Further written submissions were subsequently received from the Applicant’s representative in regard to each of the above matters. I now turn to deal with each of those issues.

The Notice of Employee Representational Rights

[1] The Applicant submits in response to the Commission’s enquiry about this issue that the reference in the form F17 to the date when the notice was provided to employees, being 28 November 2013, is a “typographical error.” The Applicant submits the notice was actually provided to the employees on Friday, 18 October 2013, almost 2 months prior to the date that voting on the Agreement commenced. It provided a Statutory Declaration made by the Applicant’s Operations Manager, Mr Anthony Vysma, in support of this submission.

[2] The Declaration states, in part, that the form F17 was in error when it referred to the date 28 November 2013, and the notice was in fact distributed to employees on 18 October 2013. The Declaration also attached copies of an email exchange between Mr Vysma and the Applicant’s representative in support of the submission that the notice was actually distributed on the earlier date. The first email dated 21 October 2013 from the Applicant’s solicitor to the Applicant seeks to confirm that the Notice of Employee Representational rights had been provided to the employees. An email dated the following day from the Applicant in response indicates the notice has already been distributed with the employees’ payslips.

[3] I am satisfied based on these submissions and the content of the Statutory Declaration that the notice was in fact distributed to employees on 18 October 2013, and that the requirements of section 181 of the Act have therefore been satisfied.

[4] A copy of the Agreement signed by the parties has also now been provided to the Commission.

Weekend and night shift penalties

[5] The Applicant submits that the proposed weekend pay rates in the Agreement represent an average of the Saturday/Sunday penalty rates that are contained in the Security Services Industry Award 2010. It also submits that the majority of hours worked by employees who are to be covered by the Agreement will be worked from Monday to Friday between 6am and 6pm. It also submits that employees will not be required to work only on a Saturday or a Sunday in any week, and where they do work on both those days the work will typically be performed and remunerated as overtime. The Applicant’s submissions also provided a detailed further analysis of the proposed rosters as they apply to work on Saturday and Sunday for employees who will be covered by the proposed Agreement.

[6] In terms of those employees who will be working during the night shift, the Applicant submits that the definitions set out in the Agreement reflect those contained in the Security Services Industry Award 2010, and if these shifts are worked the 30 percent penalty rate to which employees would be entitled under the Award has already been incorporated into the proposed rates of pay.

[7] Having reviewed the additional analysis and the submissions provided by the Applicant I am satisfied that the requirements of the “better off overall” test have been satisfied. I am also satisfied 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 16 April 2014. The nominal expiry date of the Agreement is 15 April 2018.

COMMISSIONER

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