Jeffrey Jones

[2021] FWCA 1939

[2021] FWCA 1939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Jeffrey Jones
(AG2021/4199)

STATEWIDE MONITORING SERVICE ENTERPRISE AGREEMENT 2021

Security services
DEPUTY PRESIDENT ASBURY	BRISBANE, 12 APRIL 2021

Application for approval of the Statewide Monitoring Service Enterprise Agreement 2021.

[1] Mr Jeffrey Jones applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Statewide Monitoring Service Enterprise Agreement 2021 (the Agreement). Mr Jones is the bargaining representative for the employer covered by the Agreement, Prime Investment Pty Ltd T/A Statewide Monitoring Services (the Employer) and makes this application in that capacity. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Employer in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[5] The Agreement does not contain a consultation term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Clause 2.1 of the Agreement states the Agreement will operate from the date of approval. This is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

[7] Clause 2.1 of the Agreement also states the Agreement will have a nominal expiry date of 1 July 2025. This is inconsistent with s. 186(5) of the Act which requires that an enterprise agreement specify a date as its nominal expiry date that is not more than four years after the day on which the Commission approves the agreement. Pursuant to s. 190(1)(b) of the Act the Commission can accept an undertaking that addresses a concern that an enterprise agreement does not meet requirements in s. 186. Accordingly, I accept the undertaking provided by the employer in relation to this matter and I am also satisfied that this will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 19 April 2021. The nominal expiry date of the Agreement is 12 April 2025.

DEPUTY PRESIDENT

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Annexure A