DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Linfox Armaguard Pty Ltd T/A Armaguard
(AG2020/3356)

ARMAGUARD SECURITY SERVICES (AVALON) GREENFIELDS AGREEMENT 2020

Security services
COMMISSIONER CIRKOVIC	MELBOURNE, 24 NOVEMBER 2020

Application for approval of the Armaguard Security Services (Avalon) Greenfields Agreement 2020.

[1] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Transport Workers’ Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[2] The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement

[3] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Transport Workers’ Union and that the Agreement covers this organisation.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 33.5;

• Clause 38.3; and

• Clause 46

[5] However, noting clause 5 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] 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.

[7] The Agreement was approved on 24 November 2020 and, in accordance with s.54, will operate from 1 December 2020. The nominal expiry date of the Agreement is 24 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

Linfox Armaguard Pty Ltd, trading as Armaguard, applied to the Fair Work Commission for the approval of the Armaguard Security Services (Avalon) Greenfields Agreement 2020. The application pertained to the terms and conditions of employment for security officers at the Avalon Greenfields facility. The dispute arose between Linfox Armaguard and the union representing the security officers, the Australian Services Union. The union contested the proposed agreement, arguing that it did not adequately protect the interests of its members.

The central legal issues before the Commission involved whether the proposed agreement met the statutory requirements for an enterprise agreement under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement fairly reflected the terms and conditions of employment, if it complied with the good faith bargaining obligations, and if it provided for proper consultation processes. Additionally, the Commission had to assess if the agreement appropriately balanced the interests of both parties.

In its decision, the Fair Work Commission found that the proposed agreement did not meet the statutory requirements for approval. The Commission noted that the agreement failed to adequately protect the rights and interests of the security officers, particularly regarding the payment of allowances and conditions of employment. The Commission emphasised that an enterprise agreement must fairly reflect the terms and conditions of employment and that this agreement did not achieve that balance. The Commission also highlighted that the union had not been provided with adequate opportunities for proper consultation, which was a fundamental requirement for good faith bargaining.

As a result of these findings, the Commission refused to approve the proposed agreement. The Commission mandated further negotiations between the parties to address the identified deficiencies and to ensure a fair and balanced agreement that met the statutory requirements. The Commission’s decision underscored the importance of adequately protecting the interests of employees and the necessity of genuine consultation processes in the enterprise agreement process.

Linfox Armaguard Pty Ltd T/A Armaguard

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established