Insight Security Services Pty Ltd

[2010] FWA 4710

[2010] FWA 4710

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

Insight Security Services Pty Ltd
(AG2010/10462)

Security services
COMMISSIONER CAMBRIDGE	SYDNEY, 25 JUNE 2010

Application for approval of the Insight Security Services (Casual) Collective Agreement.

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

[2] The application was lodged at Sydney on 7 June 2010. The application included a Statutory Declaration of Kellie Broad, made on behalf of the Employer and dated 28 May 2010, (the Declaration). The Declaration stated that the Agreement was made on 25 May 2010, thereby satisfying the 14 day lodgement time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these requirements is specified by s.172 of the Act which states as follows:

“172 Making an enterprise agreement

Enterprise agreements may be made about permitted matters

(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d) how the agreement will operate.

Note 1: For when an enterprise agreement covers an employer, employee or employee organisation, see section 53.

Note 2: An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.

Single-enterprise agreements

(2) An employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employer or employers are establishing or propose to establish; and

(ii) the employer or employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Multi-enterprise agreements

(3) Two or more employers that are not all single interest employers may make an enterprise agreement (a multi-enterprise agreement):

(a) with the employees who are employed at the time the agreement is made and who will be covered by the agreement; or

(b) with one or more relevant employee organisations if:

(i) the agreement relates to a genuine new enterprise that the employers are establishing or propose to establish; and

(ii) the employers have not employed any of the persons who will be necessary for the normal conduct of that enterprise and will be covered by the agreement.

Note: The expression genuine new enterpriseincludes a genuine new business, activity, project or undertaking (see the definition of enterprise in section 12).

Greenfields agreements

(4) A single-enterprise agreement made as referred to in paragraph (2)(b), or a multi-enterprise agreement made as referred to in paragraph (3)(b), is a greenfields agreement.

Single interest employers

(5) Two or more employers are single interest employers if:

(a) the employers are engaged in a joint venture or common enterprise; or

(b) the employers are related bodies corporate; or

(c) the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.”

[4] As can be seen from subsection 172 (4), a greenfields agreement is, in respect of a single-enterprise agreement, an enterprise agreement “made as referred to in paragraph (2)(b)”. Paragraph (2)(b) stipulates that an employer may make an enterprise agreement with one or more relevant employee organisations. The dictionary of the Act which can be found at s.12, states that “employee organisation means an organisation of employees” and “organisation means an organisation registered under the Fair Work (Registered Organisations) Act 2009”. Consequently, in brief, s. 172 of the Act requires, inter alia, that greenfields agreements may be made between an employer(s) and a registered employee organisation(s).

[5] In this instance, the Declaration stated at point 3.2; “No prior award/reference - Greenfields Agreement for a new company.” Further, in a covering letter provided with the application and addressed to Senior Deputy President Harrison, Kellie Broad wrote;

“RE: INSIGHT SECURITY SERVICES APPLICATION

Please find the following application attentioned [sic] specifically to yourself as it is a second application by Insight Security Services and I have been advised that you were the assessor of the first application.

This is a greenfields agreement for a new company and no employees will be commence [sic] work with Insight Security Services Pty Ltd until such time as a successful application is made.

Upon seeking advice after the failure of the initial application, the process for another completely new agreement began - it is in no way related to the first application. This second application contains nearly identical terms to another security company (seen at F17 1.7) which has since been approved by Fair Work Australia.

The reference for the first lodgement in January was AG2010/3915.

Thank you for your time.

Kind Regards,

Kellie Broad”

[6] The Declaration at point 1.7, (F17 1.7 as mentioned in the covering letter of Kellie Broad), stated; “(AG2010/3679) 17 MARCH 2010 Southern Cross Security Australiasia [sic] (Casual Employee) Enterprise Agreement 2010”.

[7] Unfortunately the application and the accompanying materials do not mention any registered employee organisation with which the Agreement had been made. The application materials did include a Form F18, a declaration of an employee organisation in support of application for approval of enterprise agreement, made by Vele Bujarovski who provided an occupation of “Security Guard” on the Form F18. The Form F18 did not mention any registered employee organisation.

[8] The Agreement document did not make mention of any registered employee organisation. Clause 3 Scope and Parties Bound of the Agreement states:

“3.1 This Agreement is made under section 170LJ of the Workplace Relations Act 1996 in accordance with section 170M of the Act this Agreement binds:

Insight Security Services Pty Ltd (ABN 44 140 168 896), 296 Windang Road Windang NSW 2528, and

All persons whose casual employment is, at any time when this Agreement is in operation, subject to this Agreement;

3.2 This Agreement applies to any person employed in a classification set out in clause 10.”

[9] It would seem that in order to comply with s.172 of the Act, a greenfields agreement would have to apply to and bind a registered employee organisation. Although it may be conceivable that the absence of any mention of a registered employee organisation could have been an oversight or error, any prospect to provide for opportunity to allow for correction or amendment was extinguished by an unfortunate and curious contradiction which emerged from the application materials. According to Kellie Broad’s covering letter there were “no employees”, yet in her Declaration at point 2.7 there were 10 employees who cast valid votes in a ballot for approval of the Agreement, all 10 of which were apparently in favour of approval of the Agreement.

[10] Consequently the Agreement does not comply with the requirements of s.172 of the Act.

[11] Further, a cursory review of the Agreement suggests that there would be a plethora of issues that would likely fail the better off overall test as contained in s.193 of the Act. For instance, the Agreement does not contain any ordinary hours of work prescriptions; or any overtime or penalty rates; or any public holidays clause; or any payment of wages clause; or any higher duties provisions; to mention a few obvious deficiencies. The general nature of the Agreement is perhaps well exampled by a comparison of the Modern Award provisions regarding Uniforms with the Uniforms provisions contained in the Agreement.

[12] Clause 15.11 (b) of the Security Services Industry Award 2010 (MA000016) states:

“Uniform

Where an employee is required to wear a uniform the employer must provide the employee with the uniform or reimburse the employee for the cost of the uniform.”

[13] Clause 19 Uniforms of the Agreement states:

“Uniforms

Staff will be expected to purchase items of uniform required to fulfil their duties. Staff will source their own black trousers, black shoes, white shirt and black suits as required. Insight Security Services will source shirts and jackets that can be purchased by the employee by payroll deduction.”

[14] The assertion of the Employer that an agreement in “nearly identical terms” has been approved by FWA provides no compelling or even persuasive issue for consideration relevant to my determination of this matter.

[15] Consequently, for the reasons as stated above, the application has not been made in accordance with the Act, and the approval sought pursuant to s. 185 is refused. Accordingly the application is dismissed.

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