M.A. Services Group Pty Ltd T/A M.A. Security Guards

[2017] FWCA 1078

[2017] FWCA 1078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

M.A. Services Group Pty Ltd T/A M.A. Security Guards
(AG2016/3973)

M.A. SECURITY GUARDS ENTERPRISE AGREEMENT 2016

Security services
COMMISSIONER GREGORY	MELBOURNE, 23 FEBRUARY 2017

Application for approval of the M.A. Services Group Pty Ltd Enterprise Agreement 2016.

[1] M.A. Security Guards Enterprise Agreement 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by M.A. Services Group Pty Ltd T/A M.A. Security Guards (“M.A. Security”). It is a single enterprise agreement and is intended to cover employees engaged in the provision of security and related services.

[2] The application is supported by an F17 Employer’s Statutory Declaration made by Mr Rajbir Ahuja, who is the Applicant’s Managing Director. The declaration also attaches various documents, including one that provides an explanation about the terms of the proposed Agreement that was given to the employees to be covered prior to the Agreement being made.

[3] On reviewing the application and the terms and conditions contained in the proposed Agreement the Commission subsequently raised a range of issues with the Applicant’s representative. These concerned, in particular, the averaging of hours arrangements, the arrangements regarding the length of shifts, the casual engagement provisions, and the part-time employment arrangements.

[4] The proposed Agreement also contains a variety of roster cycles that employees can be rostered to work. The Commission indicated in response to these provisions that it was concerned that some employees might not be better off overall under some of these roster arrangements when compared with the terms contained in the underlying Security Services Industry Award 2010 (“the Award”).

[5] The application was subsequently listed for hearing at the Applicant’s request to enable further submissions and evidence to be provided in support of the application. Ms Kate Sheridan from MacPherson Kelley was given permission to appear on behalf of the Applicant under s.596(2)(a) on the basis that the matter involved a degree of complexity and her involvement would enable the matters to be dealt with more efficiently. The Applicant subsequently provided further correspondence to the Commission after the hearing, and has also now proposed that various additional undertakings be provided.

[6] The Applicant indicated in these submissions that the meal and first aid allowance entitlements would now be applied in accordance with the terms of the Award. It also indicated that payments for work on public holidays would be made in accordance with the Award in circumstances where more than the two public holidays are worked by an employee in a calendar year. It also indicated that approximately 50% of the employees to be covered by the Agreement would be entitled to this benefit. It also indicated that the annual leave loading entitlement will be based on that contained in clause 24 of the Award on the basis that there are no employees to be covered by the proposed Agreement who work on either a permanent night or afternoon shift roster. It also indicated that the maximum shift length that can be rostered will be confined to a maximum of 12 hours, and there will be no ability to roster shifts for longer than this period. It also indicated that the minimum shift duration for any employee will be 4 hours and the provisions in the Agreement stating that part-time and casual employees may be rostered for a minimum of 2 hours will have no application.

[7] The submissions also responded to the concerns raised about the part-time provisions in the Agreement. The Applicant submits that the part-time provisions are to be applied in accordance with sub clause 10.4 of the Award, which requires that at the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, and any time worked in excess of those agreed hours will be overtime and paid for at the overtime rates prescribed in clause 23 of the Award. The submissions also indicate that in any circumstances where employees are engaged in continuous shift work, as defined in the sub clause 28.1 of the Agreement, they will be entitled to an additional week of annual leave.

[8] The submissions also responded to the issues raised about the payment of overtime and, in particular, that the proposed averaging arrangements in the Agreement are based on a 52 week period. The submissions indicate instead that the averaging arrangements will now be confined to a maximum period of 8 weeks in the same way as the maximum roster cycle provided for in the Award.

[9] The following submissions are also made in regard to the various roster cycles. Roster cycle 1 – there are no employees who will be engaged to only work between 6 p.m. and 9 p.m. – Monday to Friday under this roster cycle. The maximum number of hours that can be worked under this roster will, in fact, be confined to 20%. It was also noted that the higher rates are applied in regard to superannuation contributions and other forms of paid leave.

[10] Roster cycle 2 – it was noted that no issues have been raised by the Commission in regard to this roster cycle.

[11] Roster cycle 3 – the submission indicates that an undertaking will be provided indicating that a revised set of rates will apply for this roster cycle. In addition, no employee will be engaged to perform only weekend work under this roster, and instead a maximum of only 15% of the hours worked can be worked on weekends, with those hours being evenly apportioned between Saturday and Sunday.

[12] Roster cycle 4 – the submissions also indicate that an undertaking will be provided which increases the rates for this roster cycle. In addition, no employee will be engaged to perform only weekend work under this cycle, and there will instead be a maximum of 35% of hours that can be worked at the weekends in any week, with those hours again being limited to an even spread of hours worked on Saturday and Sunday. The submissions also indicate that roster cycle 5 will no longer have any application, and the rates for roster cycle 6 will be as set out in an attachment that has also been provided to the Commission in conjunction with the proposed undertakings.

[13] The undertakings provided as a consequence of the submissions referred to above are contained in Attachment A. I am satisfied, firstly, that the undertakings will not cause financial detriment to any employee covered by the Agreement. I am also satisfied that the undertakings do not result in substantial changes to the Agreement. Whilst it is acknowledged that they do make reference to a number of issues each of those matters are already dealt with in the Agreement and the undertakings simply amend and clarify how those provisions are intended to operate.

[14] Section 186 of the Act makes clear that before an Agreement can be approved the Commission must be satisfied that it passes the “better off overall” test. Section 193 continues to state:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

[15] This clearly requires that the Commission carry out a comparison between the terms and conditions contained in the proposed Agreement and those contained in the underlying Award, being in this case the Security Services Industry Award 2010. I am satisfied in response that the agreement passes the requirements of the better off overall test based on the terms and conditions contained in the Agreement and the additional undertakings that have now been provided.

[16] I am also satisfied that each of the requirements of ss.187, 188 and 190, as are relevant to this application for approval, have been met.

[17] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 March 2017. The nominal expiry date of the Agreement is 1 March 2021.

COMMISSIONER

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Attachment A