Knightwatch Security Pty Ltd T/A Bluestar Security

[2014] FWCA 4445

[2014] FWCA 4445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Knightwatch Security Pty Ltd T/A Bluestar Security
(AG2014/4020)

BLUESTAR SECURITY - ENTERPRISE AGREEMENT - 2014

Security services
COMMISSIONER GREGORY	MELBOURNE, 9 JULY 2014

Application for approval of the Bluestar Security - Enterprise Agreement - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Bluestar Security - Enterprise Agreement - 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Knightwatch Security Pty Ltd T/A Bluestar Security. It is a single enterprise agreement.

[2] On reviewing the application a range of issues were identified by the Commission about which further clarification was sought. These concerned, in particular, the structure of the pay rates to be contained in the proposed Agreement. They intend to provide a range of loaded pay rates depending on whether the hours worked by employees are on weekdays, nights or at weekends. For examples, the loaded pay rate proposed to be paid for hours worked on weekdays is more than the equivalent rates provided for in the underlying Security Services Industry Award 2010. However, the rates proposed to be paid for hours worked on weekends, or during the night shift, under the terms of the proposed Agreement are less than those provided for working those hours under the terms and conditions contained in the Security Services Industry Award 2010.

[3] In addition, the proposed Agreement does not provide for the various allowances that are applicable under the terms and conditions contained in the Award, and the annual leave loading is also included in the loaded rate.

[4] The particular issue associated with any assessment of the proposed Agreement, as required by the “better off overall” test, is that the question of whether an employee will be better off under the terms of the proposed Agreement, compared with the underlying Award, depends, in large part, on the hours that they are to be rostered to work at any particular time. For examples, if an employee is rostered for the majority of their hours on weekdays, then they will almost certainly be better off under the terms of the proposed Agreement, compared with the Award. This clearly appears to be the case, for example, for an employee who has 75 percent of their hours rostered between Monday to Friday, 6 a.m. to 6 p.m. However, if a significant proportion of their hours are rostered to work at night, or on weekends, then this is less likely to be the case.

[5] The Applicant’s representative provided detailed responses to the various issues raised by the Commission. It also submitted that the proposed Agreement is similar in its terms to other Agreements that have been previously approved by the Commission. However, this Agreement appears to have some distinct features. For example, it proposes to provide different pay rates, depending on when a particular shift is rostered (on weekdays or weekends), rather than providing the same rate for the entire roster. In addition, the question as to whether an Agreement structured in this way satisfies the requirements of the better off overall test is entirely dependent upon when the rostered hours under the terms of the Agreement are actually worked by any individual employee. For this reason I consider that any Agreement structured in this way must stand alone and be considered on the basis of its conditions and circumstances and, in particular, the actual rosters proposed to be worked by any employees intended to be covered by the Agreement. It follows that I do not consider that simply because one such Agreement that is structured in this way has been approved by the Commission provides any precedent value to indicate that another Agreement that is put forward for approval should be considered or treated in the same way.

[6] The Applicant’s representative in this matter has proposed a form of undertaking to satisfy some of the issues that have been identified by the Commission. The terms of the proposed undertaking were subsequently amended following further exchanges between the Applicant’s representative and the Commission. I have decided to accept the undertaking. It will require the employer to conduct an audit every eight weeks from the date of operation of the Agreement for the purpose of comparing the entitlements due to employees under the terms of the Agreement with the entitlements that would otherwise have applied to those employees if they were engaged under the terms and conditions contained in the Security Services Industry Award 2010. This includes all entitlements that would apply in either case, including any penalty rate entitlements, allowances, overtime entitlements and leave entitlements.

[7] The undertaking continues to provide that in the event of any shortfall or deficiency between the entitlements provided for under the Agreement, compared to those provided for under the Award, the employer will make up that shortfall or deficiency to the employee(s) in the next pay cycle, and will ensure that the same shortfall or deficiency does not arise again. In addition, the employer is to provide details about the outcome of these audits to the employees, if requested to do so by an employee(s), within three days of that request being made. The undertaking will now form part of the Agreement and a copy is attached to this decision.

[8] I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and s.190, as relevant to this application, have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 July 2014. The nominal expiry date of the Agreement is 15 July 2018.

COMMISSIONER

Attachment A:

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