Lighthouse Protection Group
[2010] FWA 6553
•25 AUGUST 2010
[2010] FWA 6553 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Lighthouse Protection Group
(AG2010/7386)
COMMISSIONER LEWIN | MELBOURNE, 25 AUGUST 2010 |
Lighthouse Protection Group Single Enterprise Agreement.
[1] This decision concerns an application made by Lighthouse Protection Group, for approval of the Lighthouse Protection Group Single Enterprise Agreement (the agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The application was lodged in Fair Work Australia on 15 March 2010.
[2] The reference instrument for the purposes of comparison in determining whether or not the Agreement passes the better off overall test is the Security Services Industry Award 2010 (MA000016). On reading the terms of the terms of the Agreement and the reference instrument I became concerned that the Agreement did not pass the better off overall test and requested that research be conducted on the Agreement by the FWA Agreements Team.
[3] On 9 June 2010 I provided the Lighthouse Protection Group with the research document and invited the company to respond to the issues raised by the document by 18 June 2010. Lighthouse Protection Group filed a response to my correspondence of 9 June in the Tribunal on 28 June 2010. This response included an undertaking in the following terms:
“Undertakings to improve Better off Overall Test.
Submitted in accordance with instructions by: Ian Farrar, Bargaining Agent on behalf of Lighthouse Protection Group Pty Ltd.
In consultation with the management of Lighthouse Protection Group it has been agreed to amend the Lighthouse Protection Group Single Enterprise Agreement pursuant to Clause 12.1 of the agreement. Rates to be amended as follows;
Clause 12 Remuneration & Superannuation
Clause 12.1 The minimum rates of pay for each employee for ordinary hours shall be fixed at the discretion of the employer and are as per the following table:
Employee Wage Rate Scale for Lighthouse Protection Group Security Guard Personnel
Level 1 Security Guard Personnel
Permanent Employees | Ordinary Hourly Rate | Weekend Rate | Public Holiday Rate |
$20.50 | $23.39 | $31.00 |
Additional $ 1.15 per hour for supervisory duties
For Casual Employees add 25% to all rates
Level 2 Security Guard Personnel
Permanent Employees | Ordinary Hourly Rate | Weekend Rate | Public Holiday Rate |
$21.12 | $24.10 | $32.65 |
Additional $1.15 per hour for supervisory duties
For Casual Employees add 25% to all rates
In addition the agreement is modified pursuant to Clause 14.2 that voluntary requests for additional hours will be paid at the applicable hourly rate relating to the day the extra hours were worked.
Clause 14 Overtime and Shift Breaks
Clause 14.1 Employees agree not to unreasonably refuse to work additional time beyond the maximum normal hours of 38 hours per week .Hours worked beyond 38 hours per week shall be classified as “employer” requested overtime based on an “as needed” basis.
Clause 14.2 Should an employee request additional hours of work the employee voluntary request for additional hours will be paid at the applicable hourly rate to a maximum of 10 hours per week and the provisions of clause 14.3 shall apply.
Clause 14.3 In the interest of employees’ health and family life, no employee shall be expected or required to work beyond ten (10) hours overtime per week and on no more than two weeks per four week roster cycle.”
[4] Upon receipt of the undertaking I requested that further research be conducted on the Agreement by the Fair Work Australia Agreements Team, this time taking into account the undertakings made by Lighthouse Protection Group.
[5] On 16 July 2010 I wrote to Lighthouse Protection Group, with the subsequent research document attached, stating that on what was before me at that time I was not satisfied that the Agreement passed the better off overall test. I also informed Lighthouse Protection Group that I was not satisfied that the Agreement and the above undertakings taken together would result in the Agreement passing the better off overall test and that, in these circumstances, I must decline to approve the Agreement. Lighthouse Protection Group was invited to file any further Submissions by 27 July 2010 that it may wish in order to persuade the Tribunal that the Agreement should be approved.
[6] On 26 July 2010 Lighthouse Protection Group filed letter in the Tribunal dated 21 July 2010. That letter included undertakings in the following terms:
“Undetakins to improve “Better off Overall Test”. (As revised)
Submitted in accordance with instructions by: Ian Farrar, Bargaining Agent on behalf of Lighthouse Protection Group Pty Ltd.
In consultation with the management of Lighthouse Protection Group Pty Ltd (the employer) the following clauses to the agreement have been amended in line with proposed undertakings to the agreement. Amendments are highlighted in “italics”
Clause 11 Rosters
Clause 11.1 As far as practicably possible, the employer shall draw up a workplace roster at least one week in advance, covering an eight weekly cycle and they shall prominently display said roster for all permanent employees to be made award of their allocated shifts. The roster shall detail location of work, shift start and finish times and will allow for a fair and equitable spread of house of work for each permanent employee and to allow for a shift rotation covering day and afternoon shift plus weekend shifts over a fifty two week period.
Clause 11.2 Casual employees will be required on as “as needed” and will be advised where possible of available shifts no less than 72 hours prior to the shift start.
In consultation with the management of Lighthouse Protection Group it has been agreed to amend the Lighthouse Protection Group Single Enterprise Agreement pursuant to Clause 12.1 of the agreement. Rates to be amended as follows;
Clause 12 Remuneration & Superannuation
Cluase 12.1 The minimum rates of pay for each employee for ordinary hours shall be fixed at the discretion of the employer and are as per the following table:
Employee Wages Rate Scale for Lighhouse Protection Group Security Guard Personnel
Level 1 Security Guard Personnel
Permanent Employees | Ordinary Hourly Rate | Weekend Rate | Public Holiday Rate |
$20.50 | $23.39 | $33.00 |
Additional $1.15 per hour for supervisory duties
For Casual employees add 25% to weekday rates; 30% to weekend and public holiday rates.
Level 2 Security Guard Personnel
Permanent Employees | Ordinary Hourly Rate | Weekend Rate | Public Holiday Rate |
$21.12 | $24.10 | $35.00 |
Additional $1.15 per hour for supervisory duties
For Casual employees add 25% to weekday rates; 30% to weekend and public holiday rates.
Clause 12.1(a) In addition to provisions made in clause 11.3, where a permanent employee does work in excess of 26 weekly shifts per year encompassing a weekend then for all shifts beyond 26 weeks the weekend rate shall apply;
Level 1 Security Guard Personnel working in excess of 26 weekend shifts the following weekend rate shall apply;
Weekend Rate
$27.86
Level 2 Security Guard Personnel working in excess of 26 weekend shifts the following weekend rate shall apply;
Weekend Rate
$28.70
In addition the agreement is modified pursuant to clause 14.2 that voluntary requiests for addition hours will be paid at he applicable hourly rate relating to the day the extra hours were worked is to be deleted and removed from the agreement and replaced with a new clause 14.2
Clause 14 Overtime and Shift Breaks
Clause 14.1 Employees agree not to unreasonable refuse to work additional time beyond the maximum normal hours of 38 hours per week. Hours worked beyond 38 hours per week shall be classified as “employer” requested overtime based on an “as needed” basis.
Clause 14.2 Voluntary extra hours (Deleted)
Clause 14.3 In the interest of employees’ health and family life, no employee shall be expected or required to work beyond ten (10) hours overtime per week and on no more than two weeks per four week roster cycle.
Clause 14.4 All approved overtime shall be paid at a rate of time and a half of the ordinary hourly rate for the first two hours and shall be paid double time thereafter. Employees in any given weekly period who may as a result of operational reasons elect to work beyond 10 hours overtime beyond 38 hours for permanent fulltime and casual employees and 37 hours for permanent part time employees shall be paid at the double time rate. Approved overtime worked on public holidays shall be paid at the rate of double time and a half. The Operations Manager must approve all overtime before said hours being worked.
If so agreed, the changes will be incorporated into the agreement and published to all staff.”
[7] Fair Work Australia may approve an enterprise agreement with undertakings pursuant to s.190 of the Act which is set out below:
“190 FWA may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under section 185; and
(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.
Approval of agreement with undertakings
(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.
Undertakings
(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
[8] In my judgment, there are a number of reasons why the undertakings offered cannot or should not be accepted. They are as follows:
- The undertakings would lead to substantial changes in the terms of the Agreement. Accordingly, pursuant to the provisions of s.190(3)(b) of the Act, the Tribunal does not have the discretionary power to accept the undertakings and approve the Agreement accordingly.
- The undertakings offered would not, in any event, effectively address all of the disadvantages arising from a comparison between the terms of the Agreement and the terms of the reference instrument.
- The terms of the undertakings are inherently complex, require significant interpretation, are ambiguous and, arguably at least, are so comprehensive as to constitute entirely new and different terms and conditions of employment to those which were subject of the Agreement making process with the employees.
[9] I conclude that the Tribunal does not have the discretionary power to accept the undertakings because it is likely that the undertakings will lead to substantial changes in the terms of the Agreement. In the alternative, if the discretionary power to accept the undertakings exists, then I decline to do so for the reasons stated above.
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