Linfox Armaguard Pty Ltd T/A Armaguard

Case •

[2022] FWC 2378

•

8 SEPTEMBER 2022
[2022] FWC 2378

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.185—Enterprise agreement

Linfox Armaguard Pty Ltd T/A Armaguard

(AG2022/3294)

COMMISSIONER HUNT

BRISBANE, 8 SEPTEMBER 2022

Application for approval of the Armaguard Queensland (Cash Processing) Agreement 2022

  1. Linfox Armaguard Pty Ltd T/A Armaguard (the Employer) has applied for approval of an enterprise agreement known as the Armaguard Queensland (Cash Processing) Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).  The Agreement is a single-enterprise agreement.

  1. The Agreement is proposed to cover employees of the Employer employed in Queensland where they perform cash counting work.  The underpinning award is the Clerks – Private Sector Award 2020.

  1. The employees are presently covered by either of the following two enterprise agreements:

·  Armaguard Clerical QLD Metropolitan Collective Agreement 2018 [2019] FWCA 7954; or

·  Armaguard Queensland Country Branches Clerical and Cash Processing Employees Enterprise Agreement 2017 [2018] FWCA 1942.

  1. The Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Transports Workers’ Union (TWU) are union bargaining representatives for the Agreement.

  1. The Form F17, completed by the Employer to seek the Fair Work Commission’s (the Commission) approval of the Agreement, indicates that employees were provided with a copy of the Agreement and associated material on 11 July 2022.  A toolbox meeting was held on this date and relevant material was left in the lunchroom.

  1. The toolbox meeting notes state the following:

“Better Off Overall Test:     We have compared your entitlements to the Clerks Private Sector Award 2022.  There are several items in the Agreement that are more beneficial [than] the Award.  Armaguard believes the Agreement meets the Better Off Overall Test when compared to the Clerks Private Sector Award 2022.”

  1. The ASU and the TWU, in the Form F18 completed by each of the respective unions, state that they do not agree that the Agreement meets the Better Off Overall Test (BOOT).

  1. The application was made by the Employer seeking for the Commission’s approval of the Agreement, and since the matter has been allocated to me for consideration, I have informed the Employer of my concerns relevant to the BOOT.  In particular, the Agreement provides for the following span of ordinary hours:

Metropolitan:             4:30am – 7:00pm Monday to Friday

7:00am – 12:20pm Saturday

Country Branch:         6:00am – 7:00pm Monday to Friday
  7:00am – 12:30pm Saturday

  1. The Agreement also provides for the following penalty rates for work outside of the ordinary span of hours:

Metropolitan:             7:00pm – 9:00pm Monday to Friday – an additional 25%
  9:00pm – 4:30am Monday to Friday – an additional 75%

Country Branch:         7:00pm – 6:00am Monday to Friday – an additional 50%

  1. The Clerks – Private Sector Award 2020 (the Award) provides for the following span of ordinary hours:

    7:00am – 7:00pm Monday to Friday
    7:00am – 12:30pm Saturday

  2. I am informed that some employees presently covered by the Armaguard Clerical QLD Metropolitan Collective Agreement 2018 commence work at 4:30am.  Penalty rates do not apply for work performed between 4:30am and 7:00am pursuant to that agreement.

  1. The hourly rates in the Agreement subject of this application are as follows when compared with the Award:

Classification Agreement Award Difference
Clerk Grade 1 Year 1 22.68 22.67 0.01
Clerk Grade 1 Year 2 23.75 23.74 0.01
Clerk Grade 1 Year 3 24.48 24.47 0.01
Clerk Grade 2 Year 1 24.77 24.76 0.01
Clerk Grade 2 Year 2 25.23 25.22 0.01
Clerk Grade 3 27.30 26.15 1.30
Clerk Grade 4 28.15 27.46 0.69

  1. That is, the rates for Grade 1 and Grade 2 employees are only 1 cent per hour greater than the Award. 

  1. The nominal payment of 1 cent greater than the Award does not adequately compensate employees required to perform work between 4:30am and 7:00am where the Agreement does not provide for any penalty rates at all. 

  1. It is true that that are some other entitlements in the Agreement such as e-vouchers and significantly greater redundancy entitlements than the National Employment Standards.  These do not, in my view, adequately compensate an employee required to work ordinary hours between 4:30am and 7:00am.   Back payments for increased rates of pay dating to 1 July 2021 are acknowledged, but do not form part of the BOOT consideration relevant to the rates payable at the relevant test time.

  1. The Employer has now provided an undertaking that the ordinary span of hours will be between 7:00am and 7:00pm.  I consider that to be an appropriate undertaking to give.  If the undertaking is accepted and the Agreement is approved, overtime payments will be required to be made for work performed prior to 7:00am as the Award does not provide for an early morning shift penalty.   

  1. However, I hold a concern that employees asked to vote for the Agreement were not informed of this issue.  I understand that one or both of the unions involved in this matter hold some reservation that the Employer may push back the starting time of employees from 4:30am to a later starting time.  While it seems to me that currently, metropolitan employees are not receiving penalty rates for work performed prior to 7:00am, and if the Agreement with undertakings is approved, they will become entitled to penalty rates. However, some employees may consider themselves to be adversely affected if the Employer elects, at its discretion, to alter the starting times.

  1. Section 180(5) of the Act is as follows:

“(5)       The employer must take all reasonable steps to ensure that:

(a)       the terms of the agreement, and the effect of those terms, are explained to the relevant employees; and

(b)       the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.”

  1. Section 188 of the Act is as follows:

“188      When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a)       the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i)           subsections 180(2), (3) and (5) (which deal with pre approval steps);

(ii)          subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b)       the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c)       there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”

  1. The ASU, TWU and the Commission hold concerns that employees asked to vote for the Agreement may not have had the terms of the Agreement, and the effect of those terms explained to them, when it was not in the Employer’s contemplation that there were considerable issues with the ordinary span of hours.

  1. If section 180(5) is not satisfied, the only way that can be overcome is if the Commission is satisfied that the Agreement would have been genuinely agreed to but for minor procedural or technical errors made in relation to the requirements, and the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

  1. Accordingly, I seek the views of employees to be covered by the Agreement.  Employees are invited to email my chambers at [email protected] by no later than 4:00pm Tuesday, 20 September 2022.  A consolidated commentary will be provided by my chambers for the benefit of the Employer, the ASU and TWU following receipt of the views of employees.

  1. Employees are free to provide any views that they have in respect of the Agreement and whether it should be approved.  Particular attention, however, as to whether the employee considers they genuinely agreed to the Agreement with the information they had before them, is encouraged.  If the employee considers they did not genuinely agree, the Commissioner then enquires whether they consider that the Commission should be satisfied there was genuine agreement but for minor procedural or technical errors and the employee does not consider they are likely to have been disadvantaged by the errors.



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