MSS Security Pty Ltd T/A MSS Security

[2018] FWC 963

[2018] FWC 963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

MSS Security Pty Ltd T/A MSS Security
(AG2017/4663)

COMMISSIONER CRIBB MELBOURNE, 14 FEBRUARY 2018

Application for approval of the MSS Security Victorian Enterprise Agreement 2017.

[1] MSS Security Pty Ltd t/as MSS Security (the Applicant, the company, MSS) has made an application for approval of the MSS Security Victorian Enterprise Agreement 2017 (the Agreement). United Voice (the union), the union bargaining representative, has sought to be covered by the Agreement. The union supports approval of the Agreement.

[2] The application was heard on 4 December 2017. During the hearing, Mr Joshua Findley sought permission to be heard under section 590 of the Fair Work Act (the Act). Mr Findley sought permission in relation to the pre-approval process and whether the Agreement met the Better Off Overall Test (BOOT). The company opposed permission being granted whilst United Voice did not oppose permission being granted. For the reasons given during the hearing, 1 Mr Findley was granted permission to make oral submissions in relation to the ballot notice and the Notice of Employee Representational Rights (NERR). In addition, the comprehensive written material, which had been provided by Mr Findley prior to the hearing, was formally marked as exhibits.2

[3] It is appropriate, at this point, to outline the context in which this application sits. Prior to this application, the company had made two previous applications for approval of an agreement to cover employees employed in their Victorian operations. The Commission, as presently constituted, declined to approve the first application in March 2017, on the grounds that the company had not complied with the pre-approval requirements under the Act. 3 In relation to the second application, the company advised that the second application was not approved by the Commission due to a defective NERR.4 The Agreement currently before the Commission, and the subject of this decision, is therefore the third application for approval of an Agreement covering the company in Victoria.

[4] This decision deals with the issues raised by the Commission, and by Mr Findley, in relation to the pre-approval steps undertaken by the company. In addition, determination will be made as to whether or not the Agreement passes the BOOT.

[5] I will deal with the issues regarding the pre-approval steps in the first instance.

1. Pre-approval steps

[6] Prior to the hearing, the Commission had identified concerns with the length of time between notification time and the distribution of the final NERR and had also sought clarification as to Mr McBean’s authority to sign off on the Agreement. In addition, Mr Findley had raised an issue with respect to the ballot notice.

(a) The NERR issue

[7] In the revised Form F17, filed by the company, at question 2.8, it is apparent that 532 days had elapsed between notification time (9 March 2016) and the distribution of the final NERR on 23 August 2017. Under section 173(3) of the Act, the employer is to provide the NERR no later than 14 days after notification time.

(i) MSS’ submissions

[8] It was stated by the company that:

•  The original notification time (for the first Agreement) was 1 March 2016 and a NERR was issued on 8 March 2016 (the original NERR). 5

The Commission refused to approve the second Agreement.

On 22 August 2017, the company wrote to employees and explained the issues with the NERR. Employees were advised that the NERR would be reissued and that the agreement and corresponding documents would be reissued and employees would be asked to vote on the agreement again. 6

A new NERR was issued on 23 August 2017. 7

[9] The company put forward two arguments in support of its contention that it had complied with the requirements of the Act in terms of the issuing of the NERR. The first argument was that, under section 173(4) of the Act, the company was not necessarily required to issue another NERR. This was because there was no requirement to issue a new NERR as a NERR had been issued on 1 March 2016. 8

[10] With respect to the company’s second argument, the Commission was referred to the Full Bench decision in Uniline Australia Limited (Uniline) 9 which considered whether or not the employer had issued a NERR within the required period. It was contended that, in accordance with the majority in Uniline, given that the second agreement was made but not approved, the company had reissued, effectively, a notice of intention to bargain, on 22 August 2017. It was stated that, as a new NERR was issued the following day, the company had complied with the 14 day requirement.10

[11] The company argued that, on the basis of the Uniline decision, the notice of intention to recommence bargaining was provided on 22 August 2017 with a NERR issued the next day (23 August 2017) which was within the prescribed time period. It was noted by the company that, given the bargaining history, it was open to anyone once they received the new NERR, to raise any further issues in relation to bargaining. It was stated that neither United Voice or any of the other bargaining representatives raised any issues. This was said to not detract from the effect of the letter dated 22 August 2017. 11

(ii) Mr Findley’s submissions

[12] Mr Findley took issue with the company’s contention that the letter to employees, dated 22 August 2017, could be construed as saying that the company was starting the bargaining process again. It was argued that the letter was not a notice of intention to commence bargaining. Rather, it was said that it was the company telling employees that it was putting up the same agreement and for employees to vote it up again. 12

[13] It was also contended by Mr Findley that the 2016 documents were irrelevant as the issue was that the letter of 22 August 2017 could not be seen as a notice of intention to bargain even though it was issued within the required time period before the new NERR. 13

[14] In terms of the company’s first argument with respect to section 173(4), Mr Findley submitted that “a reasonable period” was not a year later and two agreements later. 14

(iii) Consideration

[15] The issue for determination is whether or not the company complied with section 173 (3) of the Act. Section 173(3) is in the following terms:

“173 Notice of employee representational rights

…

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.”

[16] MSS sent employees a notice of intention to commence bargaining on 1 March 2016. On 8 March 2016, a NERR was issued by the company. Subsequently, the Commission found that the NERR was deficient and a new NERR was issued by the company on 23 August 2017.

[17] The company contended that the letter of 22 August 2017 which was sent to employees, was, in effect, a reissued notice of intention to bargain. This was said to be in the context that the second agreement had been made but not approved by the Commission.

[18] On the other hand, Mr Findley argued that the letter, dated 22 August 2017, advised that the company was putting the same agreement out to employees for them to vote up again. It was stated that the letter was, therefore, not a notification about bargaining and that no bargaining occurred prior to the vote.

[19] The Fair Work Act does not require the employer’s agreement to bargain or its initiation of bargaining to be in writing or in any particular form. The company sent a letter to employees on 22 August 2017 and the next day, issued a new NERR. Given the history sitting behind this Agreement, it is reasonable to infer that the letter of 22 August 2017 reflected the company’s agreement to bargain, hence the issuing of the NERR the next day - in compliance with section 173(3). Therefore, I find that the employer has met the requirements of section 173(3) of the Act.

(b) Mr McBean’s authority to sign the Agreement

(i) MSS’ submissions

[20] The situation with respect to Mr McBean was explained by MSS in the following terms:

•  United Voice were not prepared to sign the Agreement. This was despite the union supporting the approval of the Agreement in their Form F18. 15

Mr McBean was appointed as a bargaining representative on 8 November 2017. 16 Mr McBean signed off on the agreement; the first time as an employee and the second time as a bargaining representative.17

[21] In support of the company’s submission that Mr McBean was properly authorised to sign off on the Agreement, the Commission was referred to the Explanatory Memorandum to the Fair Work Act. This was said to place no restriction on when a person can appoint or revoke the appointment of a bargaining representative. It was stated that it could be at any time. The company contended that Mr McBean had therefore appointed himself as a bargaining representative and so was able to sign off on the Agreement. 18 The company argued that, although Mr McBean had initially signed the Agreement as an employee, there was no restriction on Mr McBean being appointed as a bargaining representative and then signing the Agreement.

[22] It was stated that the company had effectively resubmitted the application when a revised signature page (with Mr McBean’s signature as an employee bargaining representative) was provided to the Commission. 19

[23] The company also raised a broad policy issue with respect to the operation of the clause. This was that, if an agreement was approved by a majority of employees and the union was the only bargaining representative and refused to sign the agreement, does that give the union the right to veto the Agreement? It was argued that this was not the intention of the Act. This was because section 187 allows for the appointment of a bargaining representative at any time and an employee who wants the Agreement to be approved can appoint themselves as a bargaining representative and sign the Agreement in order to meet the requirements of the Regulations.

(ii) Consideration

[24] I have considered all of the material before me. I accept the company’s submissions that it had, in effect, resubmitted the application when it forwarded the revised signature page to the Commission. In addition, an updated Form F16 was filed by the company with the Commission on 29 November 2017. The revised signature page identifies Mr McBean as a bargaining representative and the instrument of appointment of Mr McBean as a bargaining representative was also filed.

[25] Therefore, the Commission is satisfied that the Agreement has been properly signed.

(c) Ballot notice (section 180(3))

(i) Mr Findley’s submissions

[26] Mr Findley submitted that the two ballot notices that were issued on 20 September 2017 were issued within the access period and so were not properly issued.

[27] With respect to the email of 13 September 2017, Mr Findley stated that the company did send it to the business managers with the instruction to send it to the site managers who were to print out three documents and put them in various places around the sites. However, it was contended that the email did not instruct the managers to forward on the voting details which were in the email itself. 20 This was said to mean that no employee was told that the ballot notice had been issued. Mr Findley argued that this was the reason why there was a drop in the number of people who voted.

[28] Further, it was submitted by Mr Findley that a lot of employees worked events and so did not have a site or only worked once or twice a year e.g. Spring Carnival. Therefore, it was said that a lot of employees who worked events did not receive the ballot notice. 21 Accordingly, it was contended that section 180(3) of the Act has not been complied with.22

[29] With respect to the Australian Electoral Commission (AEC), Mr Findley stated that he had contacted the AEC who had said that they had sent out the ballot information on 18 September 2017 – the same day as the company. 23

(ii) MSS’ submissions

[30] With respect to Mr Findley’s submissions in relation to employees who may only work once or twice a year (Spring Carnival), the company referred to a Full Bench decision which found that the employer was not required to notify casuals who were not actually engaged at the time about the vote. 24

[31] In its revised Form F17, the company stated that information regarding the date and place of voting and voting method was contained in an email sent to Business Managers on 13 September 2017. This email was distributed to the relevant employees.

[32] In addition, the company advised that the AEC had also sent out details of the vote. It could therefore not be said that employees were not aware of the vote. It was the company’s view that Mr Findley’s argument that the low turnout was because employees were not aware of the vote, was speculation. 25

(iii) Consideration

[33] Section 180(3) of the Act requires that the employer must take all reasonable steps to notify employees, by the start of the access period, about the time and place of voting and the voting method. According to the company’s Form F17, voting opened on Monday 25 September 2017. As the access period is the 7 day period ending immediately before the start of the voting (25 September 2017), employees were notified of the required voting information prior to the start of the access period.

[34] Further, there is no evidence before me that the employer did not take all reasonable steps to notify the employees of the vote. Business Managers received an email with the voting information which was distributed to employees.

[35] Therefore, I am satisfied that MSS has complied with the requirements of section 180(3) of the Act.

2. Better Off Overall Test

[36] The leading authority for determining whether an agreement passes the Better Off Overall Test is the Full Bench decision in Hart v Coles Supermarkets (Coles). 26 The decision sets out the test for establishing whether each employee and prospective employee would be better off overall if the agreement covered the employee than if the relevant modern award covered them.27 The decision states that the test requires identification of the terms which are more beneficial for the employee; those that are less and an overall assessment of whether the employee would be better off.28 In the decision, consideration was given to wage rates; non contingent benefits and contingent benefits. I respectfully adopt this approach.

[37] Mr Findley provided extensive submissions in support of his contention that the Agreement failed the BOOT. 29 In order to facilitate this decision, specific reference has not been made to the issues raised by Mr Findley in his submissions. However, the Commission wishes to make it clear that the issues raised by Mr Findley in the two exhibits have been considered in reaching the conclusions and decision in this matter.

(a) Wage rates

[38] Attachment 5 of the company’s revised Form F17 included a comparison between the weekly wage rates in the Award and those in the Agreement for existing employees and for new employees across the five levels. The wages comparison was stated to indicate that employees were better off under the Agreement compared with the Award.

[39] During the hearing, the company was requested to provide documentation to support this contention. Subsequently, the company provided a spreadsheet with rosters and pay comparisons for both existing and new employees for each of the classifications in the Agreement. It was submitted by MSS that the wage rates in the Agreement met the requirements of the BOOT, with the exception of Venues and Events employees (Schedule D) in certain circumstances. The Venues and Events employees will be dealt with in paragraphs [51] - [52] below.

[40] The Agreement contains two other Rate Schedules – Schedule B which applies to existing employees or employees at existing sites and Schedule C which applies to new employees on new sites. I will deal with the wage rates for existing employees or employees at existing sites (Schedule B) in the first instance.

Existing employees or employees at existing sites (Schedule B)

[41] When the Monday to Friday rate (ordinary hourly rate) for these employees contained in the Agreement is compared with the equivalent Award rate, existing employees are better off under the Agreement by 3.34% - 4.22%. Level 1 employees are to be paid under the Agreement $21.26 an hour compared with the Award rate of $20.54 (3.48% higher). Level 2 employees under the Agreement will be paid $21.84 compared with the Award rate of $21.13 (3.34% higher). Level 3 employees under the Agreement will receive $22.25 compared with $21.49 under the Award (3.53% higher). Level 4 employees under the Agreement are to be paid $22.65 compared with $21.85 under the Award (3.66% higher). Finally, Level 5 employees under the Agreement will be paid $23.51 an hour compared with $22.56 under the Award (4.22% higher). Therefore, the higher ordinary hourly rate for these employees is a benefit under the Agreement. The ordinary hourly rates in the Agreement range from 3.34% to 4.22% above the Award.

[42] Existing employees who work afternoon, night and early morning shifts receive 1.7% lower shift penalties for these shifts, across all levels, than provided for in the Award (20% compared with 21.7% under the Award). In addition, the Agreement contains a new early morning shift together with an afternoon shift and different shift spans for the other shifts. This makes the comparison between the Agreement and the Award more complex. However, the lower shift penalties for these shifts is a detriment for these employees under the Agreement as they are 1.7% below the Award.

[43] Sample rosters for each type of roster and for each classification (Levels 1 to 5 and Supervisor), for existing (and new employees), were provided by the company on 13 December 2017. The sample rosters covered an eight-hour and a 12 hour rotating roster (24/7); 4 on 4 off rotation; 9 hour shifts and 10 hour shifts – day shift Monday - Friday; After hours only rotation; 12 hour night shift only (7 days); Loading dock and Concierge (6 days) and Monday - Friday Supervisor and After hours. The rosters compared the amounts payable for the particular hours worked and did not include any allowances. With respect to existing employees, the sample rosters showed that employees were paid more than the Award across all of the roster cycles.

[44] A simplified way of illustrating the interaction in the Agreement, between the higher ordinary hourly rate and the lower level of shift penalties (offsetting), as if follows:

A Level 1 employee under the Agreement would be paid an hourly rate of $25.51 ($21.26 multiplied by 20%) for working afternoon, night shift or early morning shift Monday - Friday. Under the Award, night shift attracts a penalty of 21.7%. The hourly rate for night shift under the Award would be $20.54 multiplied by 21.7% = $25.

So, even with the lower level of shift penalties, on a direct wages comparison, existing employees are advantaged under the Agreement.

[45] For casual employees, the casual loading in the Agreement is, in effect, 23.3% compared with 25 % in the Award. This means that casual employees are worse off under the Agreement by around 1.7%.

New employees on new sites (Schedule C)

[46] The rates in Schedule C of the Agreement are lower than those contained in Schedule B and range from .50% to .51% above the Award for the Monday to Friday (ordinary hours) rate. A new Level 1 employee, under the Agreement, is paid $20.65 compared with $20.54 under the Award (.51% higher). A Level 2 employee under the Agreement is paid $21.24 compared with the Award rate of $21.13 (.5% higher). A Level 3 employee under the Agreement is paid $21.60 and an employee under the Award - $21.49 (.5% higher). The percentage above the Award (.5%) is also the same for a Level 4 and a Level 5 employee. These rates are $21.96 compared with $21.85 (Level 4) and $22.67 compared with $22.56 (Level 5). The slightly higher ordinary hourly rates for these employees is a benefit under the Agreement.

[47] The calculations for the sample rosters for new employees, provided by the company, showed that new employees are better off under the Agreement in terms of a direct wages comparison on a weekly basis. There were two weeks of exceptions to this, for Supervisors, who worked three 8 hour afternoon shifts in one week and five 8 hour afternoon shifts in another week. The company argued that, when the total pay of these employees, over the whole of the roster cycle was taken into account, these employees were better off under the Agreement. 30

[48] The shift penalties for new employees for afternoon, night and early morning shift are equivalent to the Award (night shift). Therefore, if a new employee works any of these shifts, they will be paid under the Agreement – $25.13 ($20.65 multiplied by 121.7%). Under the Award, the calculation is $20.54 multiplied by 121.7% = $25.

[49] For new casual employees, the casual loading under the Agreement appears to be, in effect 25%, which is equivalent to the Award casual loading.

[50] Therefore, in relation to a direct wages comparison, existing and new employees benefit from the higher hourly Monday to Friday rate under the Agreement. This offsets, for existing employees, the detriment of lower shift penalties for afternoon, night and early morning shifts. Existing casual employees are worse off under the Agreement due to the lower casual loading.

Venues and Events employees (Schedule D)

[51] The company indicated that the calculations for the Major Events roster showed that employees were not better off if they worked both weekends during the Grand Prix and only on the weekend during the Spring Carnival. The company argued that employees who work at the Grand Prix also work at other events during that week and also work day shifts prior to the Grand Prix. This was said to result in these employees being better off overall under the Agreement compared with the Award. 31

[52] However, the company has provided an undertaking to the Commission that the company would automatically audit, each fortnight, Venue and Event Security Officers who worked a weekend or public holiday during that fortnight, with any adjustments paid within seven days of the end of the audit. 32

(b) Non-contingent benefits

[53] In addition to the direct wages comparison, it is also necessary to consider, and take into account, other benefits under the Agreement. These benefits were characterised as non-contingent or contingent benefits in the Coles decision. 33

[54] In this Agreement, the non-contingent benefits include the following:

Overtime

Ordinary overtime

[55] The ordinary overtime clause in the Agreement (clause 25.2) is more advantageous to existing and new employees than the equivalent Award provisions. This is on the basis that, under the Agreement, Saturday overtime is paid at double the Monday to Friday Rate for the first two hours and double time and a half thereafter (clause 25.2.2.2). Sunday overtime is at the rate of double time and a half of the Monday to Friday rate for the first two hours and triple time thereafter (clause 25.2.2.3). This is in contrast to the Award provision which is that, for Saturday overtime, the rate is time and a half for the first two hours and double time thereafter with double time payable for all hours worked on Sunday (clause 23.3).

[56] It is also noted that the hourly rate that is multiplied on the basis set out in the paragraph above is the Monday to Friday Rate which is a higher Monday to Friday hourly rate than provided for in the Award. This is a further benefit under the Agreement.

[57] Data was provided by the company in relation to the amount of overtime that had been worked on the Sunday over the previous 12 months. This showed that 250 employees worked an average of 14.5 hours of overtime each on a Sunday during the past year. 34

Voluntary overtime

[58] Following the hearing, MSS confirmed that it was prepared to give an undertaking not to rely on clause 25.1 (Voluntary Overtime) of the Agreement. 35 Clause 25.1 applies to existing employees and provides that work performed on a voluntary basis outside the ordinary hours of work attracts, in effect, a loading of 19%. This is lower than the rate paid for ordinary overtime under the Agreement (clause 25.2) which, Monday to Friday, is time and a half for the first two hours and double time thereafter. Clause 25.1 is therefore no longer a disadvantage to existing employees.

Transfers

[59] It was contended by the company that clause 8 was a benefit to employees. Clause 8 provides the employer with the right to transfer an employee between sites in response to a client’s request or for operational reasons. The company undertakes to take into account (as much as is operationally possible) an employee’s family and financial responsibilities. This clause would seem to be a statement of a managerial right rather than a provision which is of benefit to an employee. It is acknowledged that the company undertakes to consider an employee’s particular circumstances. However this is qualified on the basis of what is operationally possible. Therefore, it would not seem to sit comfortably in the “benefit to employees” category.

[60] The company also identified other non-contingent benefits under the Agreement. 36 These were:

•  annual leave – payment to include over-agreement payments; leave in advance and additional cashing out (clause 30)

•  consultation clause – provision for a Consultative Committee (clause 6)

•  laundry allowance – applies to all employees and is not provided for in the Award (clause 22).

[61] These benefits are to be taken into account but are difficult to quantify with the exception of the laundry allowance. The laundry allowance is a benefit to all employees to the extent of 62 cents per shift.

[62] In summary, the ordinary overtime rate under the Agreement is a benefit to employees who are required to work overtime by the company. As well, payment of the laundry allowance to all employees is a benefit under the Agreement which is quantifiable ($0.62 per shift). In addition, provision for a Consultative Committee and enhanced access to leave and cashing out are also benefits which will be taken into account. However, these benefits are difficult to quantify.

(c) Contingent benefits

[63] Contingent benefits are those benefits which are not necessarily received by all employees and are dependent on the circumstances. There were a number of contentious issues in relation to the BOOT in this area. These included the Leading Hand allowance, first aid allowance and meal allowance.

Leading Hand allowance

[64] The proposed Agreement provides for payment of a Leading Hand allowance when an employee is in charge of 3 - 10 employees ($34.56 per week); more than 10 but less than 20 employees ($52.65) and more than 20 employees ($67.21). The number of employees receiving the Leading Hand allowance was 83 employees (3 - 10 employees); 13 employees (10 - 20 employees) and 15 employees (more than 20 employees). 37

[65] The current Award provision provides for a Supervision allowance of $34.46 per week for supervising 1 - 5 employees; of $39.77 per week for supervising 6 - 10 employees; $51.62 for supervising 11 - 20 employees and $60.93 for supervising over 20 employees.

[66] When the two sets of provisions are compared, it appears that, under the Agreement, where 3 - 5 employees are supervised, employees are slightly better off than under the Award (by 10 cents per week – $34.56 compared with $34.46 per week). However, an employee who supervises between 6 and 10 employees is worse off under the Agreement than under the Award. This is because, for supervising 6 - 10 employees, the Award provides for a payment of $39.77 per week whereas the Agreement provides for $34.56 (3 - 10 employees). For the supervision of more than 10 employees but less than 20 employees, an employee is slightly better off under the Agreement ($52.65 per week compared with $51.62). Thirteen employees were in receipt of this level of allowance. 38 Finally, employees in charge of over 20 employees are better off under the Agreement ($67.21 per week compared with $60.93). There were 15 employees in this category.39

[67] Supervision of 1- 2 employees is not recognised under the Agreement whereas it is under the Award. Therefore, employees supervising 1 - 2 employees are worse off under the Agreement by $34.46 per week. There were 83 employees in receipt of a Leading Hand allowance (3 to less than 10 employees). However, the company advised that, as it does not employ supervisors in Victoria who supervise 1 - 2 employees, no provision had been made in the Agreement for this situation. The comparison contained in Attachment 5 to the company’s Form F17 was said to have been a comparison between the Leading Hand allowance for 3 - 10 employees and the supervision allowance for 1 - 5 employees in the Award. 40

[68] Therefore, a supervisor in charge of more than 10 employees but less than 20 employees is advantaged under the Agreement (by $1.03 per week) and a supervisor in charge of more than 20 employees is also advantaged under the Agreement (by $6.28 per week). In addition, a supervisor in charge of 3 - 5 employees is 10 cents per week better off under the Agreement than under the Award.

[69] However, where a supervisor is supervising 6 - 10 employees, the employee is disadvantaged under the Agreement (by $5.21 per week). In addition, as there is no provision in the Agreement for supervising 1 - 2 employees, this means that a supervisor who is in charge of that number of employees, would be disadvantaged compared with the Award by $34.46 per week.

First aid allowance

[70] In Attachment 5 to its Form F17, it was acknowledged by MSS that an employee in receipt of a Level 1 or Level 2 first aid allowance was not better off under the Agreement compared with the Award. However, it was stated that an employee being paid a Level 3 first aid allowance was better off under the Agreement. The company contended that, overall, employees were better off under the Agreement than under the Award.

[71] Mr Findley argued that the first aid allowances in the Agreement put employees at a significant detriment. This was because the majority of employees have a Level 2 first aid certificate which means that they are only entitled to a Level 1first aid allowance under the Agreement. 41

[72] The Award provides for payment of a first aid allowance, for a Level 2 first aid certificate, of $5.55 per shift up to a maximum of $27.60 per week. The Agreement has a number of levels of first aid allowance with Level 1 related to the holding of a Level 2 first aid certificate. This is the level of first aid certificate that is equivalent to the Award provision. In addition, the Agreement provides for a Level 2 first aid allowance for a Level 3 first aid certificate and a Level 3 allowance when an employee is required to carry out more specialised first aid than in either a Level 2 or Level 3 first aid certificate.

[73] An employee who is required to hold a Level 2 first aid certificate is disadvantaged under the Agreement compared with the Award. This is because a Level 2 certificate attracts a higher payment of $5.55 per shift/$27.60 per week under the Award compared with $3.36 per shift/$16.61 per week under the Agreement (a difference of $10.99 per week). A significant number of employees (586) were stated to be in receipt of a Level 1 first aid allowance under the Agreement. In addition if an employee is required to hold a Level 3 first aid certificate, the employee would receive a Level 2 first aid allowance under the Agreement, and be paid $4.40 per shift/$21.73 per week for the higher level first aid certificate. This payment is also less than the Award provision for a lower qualification. Finally, the Level 3 first aid allowance in the Agreement is 35 cents per shift/$1.63 per week higher than the Award first aid allowance. However, to be eligible for payment of a Level 3 first aid allowance, the employee is required to carry out more specialised first aid than in either a Level 2 or Level 3 first aid certificate.

[74] Therefore, employees with either a Level 2 or a Level 3 first aid certificate are disadvantaged under the Agreement compared with the Award. The disadvantage for an employee with a Level 2 first aid certificate (Level 1 first aid allowance) is $10.99 per week. The holder of a Level 3 first aid certificate (Level 2 first aid allowance) would be disadvantaged by $5.87 per week. The benefit provided by the Agreement ($1.63 per week) applies only to those employees required to provide the highest level of first aid under the Agreement (Level 3 first aid allowance).

Meal allowance

[75] Attachment 5 of the revised Form F17 filed by the company indicated that employees under the Agreement were required to work more than one hour into the next shift before being eligible to be paid a meal allowance. The meal allowance payable ($13.95) is lower than the Award provision ($16.16). Under the Agreement, a further meal allowance is paid after each subsequent 4 hours worked ($11.95). The Award does not have a similar provision in relation to a second meal allowance.

[76] Following the hearing, MSS advised that it was prepared to give an undertaking to pay the Award rate for the Meal Allowance for employees who work one hour into the next shift. 42

Other contingent benefits

[77] Other contingent benefits in the Agreement are:

•  accident make up pay (clause 36)

•  union delegate provisions (clause 14)

•  shift swaps – employees are permitted to arrange shift swaps subject to prior supervisor approval (clause 9.3.5)

•  torch allowance – where an employee is required to provide a torch (clause 22)

•  payment for providing own transport – this is higher than the Award provision (clause 22)

•  firearm allowance – this is higher than the Award provision (clause 22)

•  public holidays – additional entitlements for existing 7 day shift employees whose rostered day off falls on a public holiday and is not required to work (clause 29)

•  training – payment when required to attend training (clause 9.4)

[78] As was indicated in the Coles decision, it is appropriate to have regard to these benefits but the Full Bench expressed some reservations about attributing a financial value to them. 43

(d) Wage increases

[79] The Agreement provides for wage rates to be increased annually, starting in July 2017, by the Fair Work Commission minimum wage increase. Existing employees are guaranteed a minimum increase of 8% over the life of the Agreement. For the reasons set out in the Coles decision, the wage increases are a relevant consideration but limited account will be taken of them. This is because not all employees at test time will remain in employment during the entire period of the Agreement. 44 It is noted that existing employees are guaranteed a minimum increase of 8% over the life of the Agreement.

(e) Undertakings

[80] During the hearing, the company provided the Commission and the union with written undertakings with respect to some of the issues that had been raised. These undertakings were in relation to:

•  clause 9.1.1 - that ordinary hours would be averaged over eight weeks

•  clauses 17.7 and 17.8 (return of uniforms) would not be relied on

•  Schedule A will be amended to provide the Award broken shift allowance

•  the company will automatically audit, each fortnight, Venue and Event Security Officers who worked a weekend or public holiday during that fortnight, with any adjustments paid within seven days of the end of the audit (as set out in paragraph [52] above) 45

[81] These undertakings were in addition to the undertaking given to the Commission, on 9 November 2017, that the company would not rely on clauses 34.2.3.3 and 34.2.3.4 of the Agreement in relation to jury service. 46

[82] As well, as indicated in paragraph [58] above, following the hearing, MSS stated that it was prepared to give an undertaking not to rely on clause 25.1 (Voluntary Overtime) of the Agreement. 47 As set out in paragraph [76] above, the company also advised that it was prepared to provide an undertaking to pay the Award rate for a meal allowance for employees who work one hour into the next shift.48

[83] The effect of the undertakings foreshadowed or provided by the company is to eliminate areas of disadvantage to employees under the Agreement. However, they do not then become benefits under the Agreement.

[84] The union indicated during the hearing that it would support approval of the Agreement with the undertakings. 49

Conclusions

[85] Taking account of all of these matters, I am not satisfied that the Agreement passes the BOOT. For some employees, particularly new employees, the financial detriment is potentially significant. For new employees, the benefits of a laundry allowance and a slightly higher ordinary hourly rate do not offset the potential financial loss of a lower first aid allowance and Leading Hand allowance. For existing employees, there is still a potential financial loss, albeit smaller, from a lower first aid allowance and Leading Hand allowance. I have considered whether or not the other benefits of the Agreement (both contingent and non-contingent) can make up for this potential loss. I am not satisfied that, when all of the benefits and detriments under the Agreement are considered, each employee and each prospective employee is better off overall under the Agreement compared to the Award.

[86] Under the Act, the Commission may accept undertakings to remedy the failure of the Agreement to pass the BOOT. 50 The Commission accepts the undertakings already provided by the company, and those they have foreshadowed. Further, the Commission is able to accept an undertaking that the first aid allowance in the Award (0.68 cents per shift/$5.55 per shift with a maximum of $27.60 per week) will apply to employees required to hold a Level 2 first aid certificate or a Level 3 first aid certificate under the Agreement (Levels 1 and 2 of the first aid allowance in the Agreement).

[87] In addition, an undertaking can be provided that, either, the Supervision allowance in the Award for 1 to 5 employees ($34.66 per week) and for 6 to 10 employees ($39.77 per week) will apply under the Agreement or that the Leading Hand allowance in the Agreement for 3 to less than 10 employees will be increased to the level of the Supervision allowance for 6 to 10 employees ($39.77) in the Award.

[88] If the company is agreeable to giving the undertakings requested, the Agreement can be approved. MSS is to advise the Commission by close of business Wednesday, 21 February 2018 as to whether it is prepared to provide these undertakings. If the requested undertakings are not provided, the Agreement is not approved.

Appearances:

R Levin and J Nguyen of Mills Oakley for MSS Security Pty Ltd t/a MSS Security

J Kenchington-Evans of United Voice

J Findley on his own behalf

Hearing details:

2017.

Melbourne:

December 4.

<PR600397>

Printed by authority of the Commonwealth Government Printer

 1   Transcript PN 151 - 155

 2   Exhibits F1 and F2

 3   Decision in transcript, on 14 March 2017 in matter AG2016/4493

 4   Transcript PN 220

 5   Ibid PN 205

 6   Ibid PN 220 and Form F17 at Attachment 3

 7   Ibid PN 220

 8   Ibid PN 299 - 301

 9   [2016] FWCFB 4969

 10   Transcript PN 227 - 236 and 272

 11   Ibid PN 314

 12   Ibid PN 242 - 253, 260 - 261 and 268

 13   Ibid PN 274 - 275 and 312 and Exhibit F2

 14   Ibid PN 311

 15   Ibid PN 159

 16   Ibid PN 165 - 166, 186 and 194

 17   Ibid PN 167 - 170

 18   Ibid PN 161 - 164

 19   Ibid PN 176 - 179

 20   Ibid PN 108 - 109 and 624

 21   Ibid PN 625 - 626

 22   Ibid PN 585 - 589 and 625

 23   Ibid PN 631

 24   Ibid PN 629

 25   Ibid PN 630

 26   [2016] FWCFB 2887

 27   Ibid at [6]

 28   Ibid

 29   Exhibit F1 and Exhibit F2

 30   Email to the Fair Work Commission, on behalf of the company, dated 13 December 2017

 31   Ibid

 32   Letter to the Fair Work Commission, from the company, dated 4 December 2017

 33   [2016] FWCFB 2887 at [16]

 34   Email to the Fair Work Commission, on behalf of the company, dated 13 December 2017

 35   Email to the Fair Work Commission, on behalf of the company, dated 19 December 2017

 36   Revised Form F17 at question 3.4 and Attachment 5

 37   Email to the Fair Work Commission, on behalf of the company, dated 13 December 2017

 38   Ibid

 39   Ibid

 40   Ibid

 41   Exhibit F1 at paragraph 17 and Exhibit F2

 42   Email to the Fair Work Commission, on behalf of the company, dated 13 December 2017

 43   [2016] FWCFB 2887 at [23]

 44   Ibid at [18]

 45   Letter to the Fair Work Commission, from the Company, dated 4 December 2017

 46   Letter to the Fair Work Commission, from the company; dated 9 November 2017

 47   Email to the Fair Work Commission, on behalf of the company, dated 19 December 2017

 48   Email to the Fair Work Commission, on behalf of the company, dated 13 December 2017

 49   Transcript PN 363

 50   See s.186(1) and s.190 of the Fair Work Act