DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ISEC Pty. Limited. T/A ISEC Pty. Limited
(AG2016/602)

COMMISSIONER GREGORY

MELBOURNE, 7 OCTOBER 2016

Application for approval of the ISEC Single Enterprise Agreement 2016-2020.

Introduction

[1] This decision deals with an application for approval of an enterprise agreement known as the ISEC Single Enterprise Agreement 2016-2020. It is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by the Employer, ISEC Pty Ltd (“ISEC”).

[2] The application and the accompanying Statutory Declaration provided by ISEC’s CEO, Mr Tony Daou, indicate that at the time the application was made the business employed 11 employees, who are all engaged on either a part-time or casual basis. It was also indicated that the employees work at various locations in Sydney, providing security services at events, and at hotels, licensed clubs and other venues.

[3] After reviewing the application and the terms and conditions contained in the proposed Agreement the Commission forwarded correspondence to ISEC about various issues to do with satisfaction with the requirements of the “better off overall test.” After further exchanges the Commission then decided to list the matter for hearing in order to enable ISEC to provide any further submissions or evidence in support of the application.

[4] Mr Paul O’Halloran from FCB Group was granted permission to appear on behalf of ISEC under s.596(2)(a) of the Act as the matter involves a degree of complexity and his involvement might enable it to be dealt with more efficiently. Mr Frank Bellomo, the General Manager of ISEC, also appeared in the proceedings with Mr O’Halloran.

The Issues to be Determined

[5] Section 186(1) of the Act requires that the Commission must approve an Agreement if satisfied that each of the various requirements in ss.186 and 187 are met. Section 186(2)(d) states that the Commission must be satisfied the Agreement passes the “better off overall test” as part of these requirements. The nature of the “better off overall test” is dealt with in s.193(1). It states:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(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.”

[6] It is well established that the application of the test requires identification of the terms and conditions in the proposed Agreement that are more beneficial for the employees, and those which are less beneficial, with an overall assessment then being made about whether the employees would be “better off overall” under the terms and conditions in the Agreement, compared with those in the underlying Award. As indicated, in this case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 7103
Decision Date: 7 OCTOBER 2016

CaseChat Overview and Summary

The applicant, ISEC Pty. Limited, trading as ISEC Pty. Limited, applied for approval of a single enterprise agreement (SEA) for the period 2016-2020. The application was heard by the Fair Work Commission, which was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009. The dispute arose from the negotiations and drafting of the agreement between the applicant and the Australian Manufacturing Workers' Union, representing the employees.

The legal issues before the Commission involved assessing whether the SEA was genuinely negotiated, met the coverage test, and did not contain any unfair provisions. The applicant needed to demonstrate that the agreement was the product of genuine bargaining, that it covered a class of employees eligible for an SEA, and that it did not include any terms that were against the public interest or contrary to the objects of the Act. The Commission had to consider submissions from both parties and any relevant evidence provided.

In reaching its decision, the Commission considered the process of negotiation, the content of the agreement, and the compliance with legislative requirements. It was noted that the agreement was the result of genuine bargaining efforts between the parties, and it covered a class of employees eligible for an SEA. The Commission also examined whether any provisions in the agreement were unfair, considering the need to balance the interests of both employers and employees. After thorough deliberation, the Commission found that the agreement met all the necessary criteria and approved it, finding that it was fair and reasonable.

The final orders of the Commission included the approval of the ISEC Single Enterprise Agreement 2016-2020, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and it would apply to the specified class of employees, governing their employment terms and conditions for the stipulated period.

Orders