Insight Security Services Pty Ltd
[2010] FWA 565
•29 JANUARY 2010
[2010] FWA 565 |
|
DECISION |
Fair Work Act 2009
s.185—Approval of enterprise agreement
(AG2010/3915)
Security services | |
COMMISSIONER CAMBRIDGE | SYDNEY, 29 JANUARY 2010 |
Application for approval of the Insight Security Services Pty Ltd Collective Agreement 2009.
[1] An application has been made for approval of an enterprise agreement known as the Insight Security Services Pty Ltd Collective Agreement 2009 (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 Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.
[3] The application was lodged at Sydney on 6 January 2010. The application included a Statutory Declaration of Steven Juarez, made on behalf of the Employer and dated 4 January 2010, (the Declaration). The Declaration stated that the Agreement was made on 23 December 2009, thereby satisfying the 14 day lodgement time limit established by s. 185 (3) of the Act.
[4] Part 2-4 of the Act includes various procedural requirements that must be satisfied before Fair Work Australia (FWA) can approve of an enterprise agreement. One of these procedural requirements is specified by s.181 of the Act which states as follows:
181 Employers may request employees to approve a proposed enterprise agreement
(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.
(2) The request must not be made until at least 21 days after the day on which the last notice under subsection 173(1) (which deals with giving notice of employee representational rights) in relation to the agreement is given.
(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.
[5] As can be seen from s. 181 (2), a period of at least 21 days must elapse after the last notice of representational rights is given and before any request to approve an agreement is made.
[6] In this instance, the Declaration stated that the date on which the last notice of representational rights was provided was 23 December 2009. The Declaration also stated that the date that the Employer first requested that the employees approve the Agreement by voting for it was 30 November 2009.
[7] Consequently the Agreement does not comply with the requirements of s.181 (2) of the Act.
[8] Further the Agreement document that accompanied the application was not signed as required by s. 185 (2) of the Act.
[9] It would be conceivable that the failure of the application to meet the procedural requirements of the Act could have arisen from mistake or some inadvertent error. However it would be potentially problematic to contemplate allowing for correction or amendment, perhaps under section 586 of the Act, given that; (a) the relevant material has been provided in the form of a Statutory Declaration, and (b) the procedural requirements are contained in the Act, and not some subordinate instrument.
[10] Any proper process to possibly permit correction or amendment would likely require a Hearing involving careful examination and testing of evidence from the deponent of the Statutory Declaration as a witness in the proceedings. In a practical sense, particularly as some of the terms of the Agreement appear to operate so as to cause the Agreement to fail the no disadvantage test, it would be potentially more costly and inconvenient to the applicant employer to allow the application to proceed at all.
[11] For the benefit of the Parties to the Agreement, the terms of the Agreement that appear to offend the no disadvantage test or provide concern generally, include but are not limited to:
1. The title of the Agreement in Clause 1 conflicts with the definition of Agreement in clause 7.
2. Clause 3 refers to “the Employer” however the document frequently refers to “the Company” which is not defined in Clause 7.
3. Clause 5 refers to “…one officer of the Alliance…” and also “…the Union” neither of these terms are defined in clause 7 or elsewhere in the document.
4. Clause 7 defines “Award” as the Security Industry (State) Award however, the comparison material that was included with the application referred to the Security Services Industry Award 2010 (MA000016) as does clause 30.
5. Clause 8 which provides for termination of an employee on 1 hour’s notice during the probation period.
6. Clause 8 which appears to provide for a qualifying period of six months before an employee is deemed to be a “permanent employee”.
7. Clause 8 which appears to provide that a part-time employee is a person who works “…not less than 304 ordinary hours each eight week cycle.”
8. Clause 8 which appears to determine that a casual employee starts and is terminated from a separate contract of employment on each occasion that a shift is worked.
9. Clause 9 which appears to provide for deductions from pay contrary to s.324 of the Act.
10. Clause 10 which appears to provide for a preferred hours of work arrangement at ordinary time rates.
11. Clause 11 which establishes abandonment of employment after two consecutive absences and backdates the date of operation of termination of employment.
12. Clause 12 which requires that employees “… be uniformed on site and ready for their shift fifteen minutes prior to commencement…”
13. Clause 13 which provides fixed rates of pay for casual employees without regard for the work performed.
14. Clause 13 which provides for only two rates of pay, one for Provisional Security Officer the other for “Non provisional fully licensed employees” and these rates are not subject to the 3% annual adjustments that apply to the casual rates.
15. Clause 15 which although including “Xmas Eve” and “1800-2359 on New Years Eve” as Public Holidays, does not mention Australia Day, Good Friday, Easter Monday, Anzac Day, Queens Birthday or Labour Day.
16. Clause 18 which appears to provide for deductions from pay contrary to s.324 of the Act.
17. The absence of a higher duties clause or similar such as clause 18 of the Security Services Industry Award 2010 (MA000016).
[12] 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.
COMMISSIONER
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