DECISION

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

N T Seaman T/A United Wolves
(AG2018/4986)

COMMISSIONER MCKINNON

MELBOURNE, 19 MARCH 2019

Application for approval of the GSA Security Management Enterprise Bargaining Agreement 2018.

[1] Application has been made by N T Seaman t/a United Wolves under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the GSA Security Management Enterprise Bargaining Agreement 2018 (the Agreement).

[2] The application was considered by a Full Bench of the Commission in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1 and remitted to me for further consideration.2

[3] On 4 February 2019, a number of my concerns in relation to the application were communicated to the Applicant. The Applicant provided a response to those concerns but the response does not address the concerns in relation to loaded rates of pay.

[4] Under the Agreement the ‘ordinary hourly rate’ is ‘inclusive of all allowances, penalties and loadings and is payable for all hours worked, except where otherwise provided.’ 3 The same arrangement applies to Crowd Controllers and Static Guards.4 Casual employees are also paid an ‘ordinary hourly rate of pay’ for all hours worked.5

[5] The Agreement permits casual employees to be employed from time to time to work on weekends, including weekend nights. I consider that a likely scenario. A casual employee working 8 hour shifts on Friday and Saturday night each week would earn $528.00 gross per week under the Agreement, compared to $582.58 gross per week under the Security Services Award 2010.

[6] I am not satisfied on the basis of the material before me, and having regard to the Loaded Rates Decision, 6that the Agreement passes the better off overall test for the purposes of s.193 of the Act.

[7] On that basis, the Agreement cannot be approved. 7 Given this finding, it is not necessary to deal further with the other issues that arise in relation to the application, including those additional matters identified by the Full Bench.

[8] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318

2 See ibid, [175]

3 Agreement, cl.11.2.1

4 Agreement, cl.12

5 Agreement, cl.11.1

6 [2018] FWCFB 3610

7 See the Act, s.186(2)(d).

CaseChat Overview and Summary

In the matter of N T Seaman trading as United Wolves, the applicant sought approval for the GSA Security Management Enterprise Bargaining Agreement 2018 from the Fair Work Commission. This agreement was intended to govern the terms and conditions of employment for security officers employed by GSA Security Management, a company involved in providing security services. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, particularly focusing on the process followed in its development and whether it adhered to the principles of good faith bargaining and fair terms.

The primary legal issues the court needed to address were whether the bargaining process was conducted in good faith and whether the terms of the agreement were fair. The applicant argued that the agreement was the result of a genuine attempt at conciliation and arbitration, while the respondent contested the fairness of certain terms and the legitimacy of the bargaining process. The court had to determine if the agreement was made in compliance with the legislative framework, which mandates that agreements be negotiated in good faith and cover essential terms.

The court concluded that the bargaining process was conducted in good faith, as evidenced by the efforts to reach a consensus between the parties. The court found that the agreement contained terms that were fair and reasonable, taking into account the specific needs of the industry and the workforce. It was noted that the agreement provided for appropriate protections and benefits for employees, aligning with the principles set forth in the Fair Work Act. Based on these findings, the court approved the agreement, recognising its compliance with the necessary legislative requirements.

The final orders included the approval of the GSA Security Management Enterprise Bargaining Agreement 2018, effective from the date of the decision. The court emphasised the importance of continued adherence to the principles of good faith bargaining and fair terms in any future negotiations between the parties. The decision underscored the role of the Fair Work Commission in ensuring that enterprise agreements meet the statutory standards for fairness and compliance.

N T Seaman T/A United Wolves

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established