Nationwide Guardian Pty Ltd T/A Nationwide Guardian

[2018] FWC 6515

[2018] FWC 6515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Nationwide Guardian Pty Ltd T/A Nationwide Guardian
(AG2017/414)

COMMISSIONER GREGORY MELBOURNE, 23 OCTOBER 2018

Application for approval of the Nationwide Guardian Enterprise Agreement 2017.

[1] On 13 February 2017 Nationwide Guardian Pty Ltd made application under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) for approval of the Nationwide Guardian Enterprise Agreement 2017. The application was accompanied by a Form F17 Employer’s Statutory Declaration from the General Manager of Nationwide Guardian Pty Ltd, Mr Gaurav Mehta. The declaration indicated that the Agreement was intended to cover 5 employees, all of whom were employed on a full-time basis.

[2] The proposed Agreement also contained what are often described as loaded rates with a single rate being proposed for all hours worked, in place of the base rate and additional penalty rate entitlements that apply in the underlying Security Services Industry Award 2010.

[3] The Commission subsequently raised a number of issues concerning the application and after various exchanges the matter was set down for hearing on 31 October 2017. However, that hearing was subsequently adjourned pending the determination of an application in a related matter which was considered to be relevant to the outcome of this application.

[4] In addition, the President of the Commission had previously referred five applications for the approval of enterprise agreements to a Full Bench of the Commission for further consideration. Each of those proposed Agreements provided for loaded or higher rates of pay which were intended to incorporate, in whole or part, the penalty rates and other monetary benefits for which separate provisions are generally made in the applicable Modern Award. Those proceedings became known as the “Loaded Rates Agreements” matter. Three of the proposed Agreements that were referred to the Full Bench by the President involved the security industry.

[5] The Full Bench handed down its decision on 28 June 2018. It found that the three Agreements involving the security industry were not able to be approved. Its conclusions at pages 49 and 50 of the decision are of particular relevance in this context. The Full Bench had particular concerns about the provisions in the Agreements relating to casual employment, and was not satisfied that these could be dealt with by way of further undertakings being provided. It also set out a series of principles to be applied generally in regard to the consideration of proposed enterprise agreements containing loaded rates. These are set out at pages 43 and 44 of the decision.

[6] As a consequence of the Full Bench decision the Commission wrote to the Applicant’s representative on 21 August 2018 indicating that it was now difficult to conclude that the proposed Agreement could be approved, and the Applicant might accordingly wish to consider withdrawing the application. However, it was also indicated that if the Applicant still intended to pursue the matter then it would be set down for hearing to enable any further evidence and submissions to be provided in support of the application.

[7] The Commission was subsequently advised by the Applicant’s representative that it no longer acted on behalf of the Applicant, and on 30 August 2018 the Commission sent an email to the Applicant in similar terms to the correspondence dated 21 August 2018. No response was received to that correspondence.

[8] On 26 September 2018 the Commission again wrote to the Applicant in similar terms. That correspondence concluded by stating:

“However, in the light of the previous correspondence referred to above if no response has been received to this letter from you by close of business on Friday, 5 October 2018 then it will be assumed that you do not intend to pursue the matter and the application will be dismissed.”

[9] No response has been received to that correspondence as at the date of this decision. Section 587 of the Act provides the Commission with broad powers to dismiss an application. Given the circumstances referred to above I consider it now appropriate to dismiss the present application on the basis that it has no reasonable prospects of success. The application is accordingly dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR701647>