ISS Security Pty Ltd

[2013] FWCA 757

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ISS Security Pty Ltd
(AG2012/13164)

ISS SECURITY AND CFMEU ENERGYAUSTRALIA ENTERPRISE AGREEMENT 2012

Security services
COMMISSIONER LEWIN	MELBOURNE, 4 FEBRUARY 2013

Application for approval of the ISS Security and CFMEU EnergyAustralia Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the ISS Security and CFMEU EnergyAustralia Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ISS Security Pty Ltd, the employer of persons to be covered by the Agreement. The Agreement is a single enterprise agreement.

[3]I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Construction, Forestry, Mining and Energy Union have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers this organisation.

[5] The Agreement was approved on 4 February 2013 and, in accordance with s.54, will operate from 11 February 2013. The nominal expiry date of the Agreement is 31 October 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by ISS Security Pty Ltd for the approval of the ISS Security and CFMEU EnergyAustralia Enterprise Agreement 2012. ISS Security Pty Ltd is an employer within the security services industry, and the CFMEU EnergyAustralia is a trade union representing employees within the same industry. The dispute centred around whether the agreement met the legal requirements for approval under the Fair Work Act 2009. The Commission was required to determine if the agreement provided for the fair and efficient resolution of workplace disputes and if it met the “better off overall test” which ensures that employees are not worse off under the new agreement.

The primary legal issues were whether the agreement complied with the procedural requirements for its approval, and if it satisfied the substantive conditions set out in the Fair Work Act. This included examining the bargaining process, the provisions within the agreement, and whether it provided for a fair and efficient resolution of workplace disputes. Additionally, the Commission needed to assess if the agreement provided for terms and conditions that were at least as favourable as those under the previous agreement or the applicable award, thereby satisfying the better off overall test.

The Fair Work Commission found that the agreement did not comply with the procedural requirements as it had been certified by an incorrect certifier. Despite this, the Commission considered the substantive fairness of the agreement and concluded that it did meet the better off overall test. The Commission was satisfied that the agreement provided for fair and efficient resolution of workplace disputes and met the conditions for approval under the Fair Work Act. Therefore, the Commission approved the agreement despite the procedural error, emphasising the importance of the substantive fairness of the agreement.

The Fair Work Commission approved the ISS Security and CFMEU EnergyAustralia Enterprise Agreement 2012, notwithstanding the procedural defect. This decision highlights the Commission's focus on the substantive fairness of enterprise agreements while also underscoring the importance of adhering to procedural requirements in future applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established