Global Manpower Solutions Pty Limited

[2015] FWCA 7080

[2015] FWCA 7080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Global Manpower Solutions Pty Limited
(AG2015/1230)

GLOBAL MANPOWER SOLUTIONS PTY. LTD. (GMS) PROTECTIVE SECURITY (NSW/VIC) SINGLE ENTERPRISE AGREEMENT 2015

Security services
COMMISSIONER GREGORY	MELBOURNE, 21 OCTOBER 2015

Application for approval of the Global Manpower Solutions Pty. Ltd. (GMS) Protective Security (NSW/VIC) Single Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Global Manpower Solutions Pty Ltd (GMS) Protective Security (NSW/VIC) Single Enterprise Agreement 2015 (the Agreement). It is made under s.185 of the Fair Work Act 2009 (the Act) by Global Manpower Solutions Pty Limited (“GMS”) and is a single-enterprise Agreement.

[2] After reviewing the application and the terms and conditions contained in the proposed Agreement the Commission subsequently wrote to GMS seeking clarification about a number of matters. These concerned both the processes involved in making the Agreement and the terms and conditions contained in the Agreement. GMS subsequently provided a written response to that correspondence, however, the Commission decided to list the matter for hearing to enable further submissions and evidence to be provided in support of the application.

[3] Mr Joseph D’Abaco was granted permission to appear in the proceedings on behalf of GMS under s.596(2)(b) on the basis his involvement would enable the matter to be dealt with more efficiently.

[4] The submissions provided by GMS in the proceedings dealt primarily with the issues raised by the Commission in its earlier correspondence. GMS also provided various additional documents as part of its submissions. The first document is a spreadsheet setting out the various rates of pay that apply in the underlying Security Services Industry Award 2010 as at 1 July 2015. It includes the different rates applicable to full-time, part-time and casual employees during the different times of the week, including during ordinary time hours, evening rosters, and on shifts rostered on Saturday, Sunday and public holidays. It also contains details of the respective overtime entitlements for work during those various times, as well as details of the current allowances provided for under the terms and conditions contained in the Award.

[5] The second document details the various rates of pay to be provided under the different roster arrangements encompassed by the proposed Agreement. Separate and distinct rates are proposed for three different roster arrangements, being a non-rotating day roster, a non-rotating night roster, and a rotating roster. The document contains rates in each case for both permanent and casual employees. A separate column also details the particular hourly rates to apply when work is performed on a public holiday. It also details the allowances provided for under the proposed Agreement, which include a first aid allowance, a leading hand allowance, a relieving officer allowance, and a vehicle allowance to be paid when employees are required to use their own vehicle in the course of their work.

[6] GMS also indicated in its submissions that no employees are rostered to work as permanent night shift workers because it is not viable to roster employees in that way, given the additional penalty rate entitlements that apply under the underlying Award, and the rates customers are prepared to pay for the provision of its services. The three different rosters that are worked by part-time employees, for example, are either permanent day shifts, rotating shifts, or a combination of day and night shifts that do not involve work at the weekends.

[7] The final document provided by GMS sets out various examples of modelling undertaken applying the different rates of pay provided for under the proposed Agreement. The first examples deal with an employee engaged on a permanent day shift. The second set of examples covers two employees who are rostered to work a part-time rotating shift involving a combination of day and night shifts, including work performed on Saturday. The third set of examples encompass a permanent part-time employee, who is not a rotating employee but does work a combination of day and night shifts. In this case the work is confined to hours extending from Monday to Friday and does not include work performed on the weekend. It is noted in the context of this document that a limited number of the examples provided of the calculations indicate the terms of the proposed Agreement compare less favourably with the same roster calculated on the basis of the Award entitlements. However, GMS submits when the rosters are viewed in totality these limited shortfalls are more than offset by the rosters which leave employees better off when compared with the entitlements provided for under the Security Services Industry Award 2010.

[8] It is also noted that the modelling provided to the Commission does not envisage work being performed, in any circumstances, by either permanent or casual employees on a Sunday when double time entitlements apply under the terms and conditions contained in the underlying Award.

[9] GMS also indicated in its submissions that it was prepared to provide an undertaking for the Commission’s consideration indicating it would not seek to rely upon the provisions contained in the Agreement which provide for the ability to establish a roster cycle over a period of 16 weeks. It is noted in this context the Award only provides for rosters to be established over a maximum eight week period.

[10] The submissions provided by GMS also respond to other matters previously raised by the Commission. GMS submits it employs Security Officers in New South Wales, Victoria and South Australia, however, the proposed Agreement is only intended to cover its employees in New South Wales and Victoria on the basis that South Australia is a geographically separate and distinct part of the business.

[11] GMS also submits the proposed Agreement is intended to cover all of its employees in New South Wales and Victoria who are involved in security officer work. It does not cover five additional employees who are employed in either administrative or managerial roles. It also noted that GMS now employs a total of 27 employees in Security Officer duties, with 15 of those employed on a part-time basis and the remainder as casual employees. All are involved in duties encompassed by the Level 1 classification.

[12] The Commission had also noted in its earlier correspondence that the Employer’s Statutory Declaration appeared to indicate only half of the total number of employees proposed to be covered by the Agreement had participated in the voting process for its approval. GMS submits in response that all employees were provided with various opportunities to clarify any issues in regard to the terms and conditions contained in the proposed Agreement, and notification of the proposed voting process for approval of the Agreement was provided to employees on 6 May, well in advance of when the vote was held on 18 May 2015.

[13] The Commission had also previously sought clarification about whether the overtime entitlements of part-time employees under the terms of the Agreement replicate those contained in the underlying Award. This was indicated to be a matter of some significance given the proportion of employees to be covered by the Agreement who are engaged on a part-time basis. GMS submits in response that the Agreement provides that when part-time employees are engaged they are required to be advised of what their ordinary hours will be on a weekly basis. It submits that sub clauses 3.9 and 3.10 then require that if a part-time employee works in excess of their rostered hours over a particular roster period then overtime entitlements are payable. This would include a situation where the total hours worked in a week were less than 38, because the entitlement to overtime payments arises when an employee works in excess of the average of their agreed ordinary hours over a particular work cycle.

[14] In terms of the overtime entitlements GMS also submits any reference in the Agreement to “reasonable additional hours” being worked constitutes hours in addition to normal hours and those hours of work are therefore required to be compensated on the basis of the relevant overtime entitlements.

[15] GMS also responded to the Commission’s previous advice that the consultation clause in the Agreement did not appear to comply with the current statutory requirements, and indicated a further undertaking could be provided confirming it was prepared to accept that the model consultation clause prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[16] I have had regard to the submissions provided by GMS in the proceedings, and to the documentation provided in conjunction with those submissions. This includes the submissions going to the nature of the roster arrangements to be in place for the employees to be covered by the proposed Agreement, and the examples of the modelling provided in support of the application. I am satisfied in response that these arrangements, when compared to the entitlements contained in the underlying Security Services Industry Award 2010, satisfy the requirements of the “better off overall” test.

[17] However, it is also emphasised in this context that this conclusion does not by any means provide a precedent for any other proposed agreement that might be the subject of an application to the Commission for approval. It is instead a conclusion that has been arrived at based on the matters set out in the application and the Employer’s Statutory Declaration, together with the content of the proposed Agreement, and the additional submissions that have been provided about the circumstances of the employer and the employees involved in the matter. I am also satisfied that each of the requirements of ss.186, 187, 188 and s.190 as are otherwise relevant to this application for approval have been met.

[18] As indicated, GMS has also provided two undertakings dealing with the consultation clause and the implementation of various roster arrangements. I am satisfied that neither results in substantial changes to the Agreement or acts to the detriment of the employees. Both undertakings are accordingly accepted and are now taken to be a term of the Agreement.

[19] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 October 2015. The nominal expiry date of the Agreement is 20 October 2019.

COMMISSIONER

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