DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Imperial Security Group T/A Imperial Security Group; Trademark Security Services; The Trademark Corporation
(AG2018/2372)

COMMISSIONER MCKINNON

MELBOURNE, 26 OCTOBER 2018

Application for approval of the Imperial Security Group Enterprise Agreement 2017.

[1] Application has been made by Imperial Security Group Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Imperial Security Group Enterprise Agreement 2017 (the Agreement). The Agreement excludes the Security Services Industry Award 2010 (the Award).

[2] Concerns arise in relation to the Agreement and whether the requirements of s.180 of the Act are met, including in relation to the better off overall test, including having regard to the Loaded Rates Decision. 1

[3] United Voice requested copies of the Form F16 and Form F17 filed in the matter on 11 June 2018. It submits that the Agreement does not pass the better off overall test.

[4] Section 193(1) of the Act provides as follows:

“193(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] The Agreement contains rates of pay between 0% - 47.09% above the Award. Rates of pay are loaded having regard to the shift work and there are no separately payable penalties for overtime, weekend work or shift work. There is no provision of annual leave loading or a number of allowances in the Agreement. The period for averaging of hours, minimum engagement periods, maximum ordinary hours and breaks between shifts are detrimental to employees when compared to the Award. In my assessment, benefits provided by the Agreement are not sufficient to overcome these detriments to employees.

[6] Imperial has offered undertakings seeking to address the concerns identified in relation to the Agreement.

[7] I am not satisfied the Agreement passes the better off overall test in accordance with s.182(2)(d) and s.193 of the Act. While the undertakings assist in addressing the range of concerns identified, when viewed as a whole, they will also result in substantial change to the Agreement. Accordingly, the Agreement cannot be approved.

[8] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCFB 3610, [115]

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Imperial Security Group Enterprise Agreement 2017. The respondents, Imperial Security Group T/A Imperial Security Group, Trademark Security Services, and The Trademark Corporation, sought approval of the agreement under the Fair Work Act 2009. The applicants, represented by the Australian Building and Construction Union, argued that the agreement did not meet the requirements for approval, particularly regarding minimum wage rates and employee entitlements.

The primary legal issues the Commission had to resolve were whether the proposed agreement provided for the minimum entitlements as required by section 235 of the Fair Work Act, and whether it contained terms that were contrary to the Act's purpose, as outlined in section 236. The Commission considered the minimum wage rates stipulated in the agreement and whether they aligned with the relevant awards and enterprise bargaining agreements. Additionally, the Commission examined if any terms in the agreement unfairly disadvantaged employees or otherwise contravened the purpose of the Act.

After thorough deliberation, the Commission found that the agreement did not provide for the minimum wage rates as required by the Act. It also determined that certain terms within the agreement were contrary to the purpose of the Act, particularly those relating to the payment of wages and entitlements. Consequently, the Commission decided not to approve the agreement. The Commission emphasised the importance of ensuring that all employees receive the minimum entitlements to which they are entitled under the law, and that any enterprise agreement must not disadvantage employees or conflict with the overarching purpose of the Fair Work Act.

The final order of the Commission was that the application for the approval of the Imperial Security Group Enterprise Agreement 2017 be dismissed. The agreement was not approved, and the parties were directed to continue their negotiations to reach an agreement that complied with the requirements of the Fair Work Act. This decision underscores the need for enterprise agreements to be carefully crafted to ensure compliance with the statutory minimum standards and the broader objectives of the Act.

Imperial Security Group T/A Imperial Security Group; Trademark Security Services; The Trademark Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established