Peterson Group Services Pty Ltd

[2017] FWCA 1080

[2017] FWCA 1080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Peterson Group Services Pty Ltd
(AG2016/1555)

PETERSON GROUP SERVICES PTY LTD ENTERPRISE AGREEMENT 2016

Security services
COMMISSIONER GREGORY	MELBOURNE, 23 FEBRUARY 2017

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

[1] An application has been made for approval of an enterprise agreement known as the Peterson Group Services Pty Ltd Enterprise Agreement 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Peterson Group Services Pty Ltd (“Peterson Group”). It is a single enterprise agreement.

[2] The application is supported by an F17 Employer’s Statutory Declaration made by Mr Paul Peterson, who is the Applicant’s Managing Director. It indicates that at the time the application was made the Applicant employed 11 employees who are engaged in the provision of security and related services. The underlying Award is the Security Services Industry Award 2010 (“the Award”). The Agreement also provides that employees can be employed in one of two different “streams,” with the second stream providing for a loaded range of wage rates, depending upon the actual roster being worked.

[3] On reviewing the application and the terms and conditions contained in the proposed Agreement the Commission subsequently sought clarification from the Applicant’s representative about various issues. It was noted, firstly, that the part-time provisions in the Agreement appear to differ in their intent from those contained in the Award, which make clear that part-time hours are to be agreed and fixed in advance, as well as confirmed in writing, with any hours worked in excess of those agreed to be paid as overtime.

[4] The Commission also raised issues to do with the entitlements in regard to overtime, as well as the entitlements for casual employees working on a public holiday. It was also suggested that the Applicant might consider providing an undertaking in response to the fact the proposed Agreement did not provide for payment of the annual leave loading when annual leave is taken.

[5] The Applicant’s representative provided a detailed response to the matters raised by the Commission. It submits that the provisions contained in sub clause 21.12 of the Agreement make clear that part-time employees are engaged for a set number of hours, and these hours are therefore reasonably predictable. In addition, any time worked in excess of these hours is to be treated as overtime and paid for as such. It was also indicated that an undertaking was proposed, which would increase the weekly pay rates for all employees by an amount of $10 per week, in response to the fact that the Agreement does not provide for payment of the annual leave loading when annual leave is taken.

[6] It also proposed to provide an undertaking which would establish new rates for casual employees in both of the streams provided for in the Agreement in circumstances where those employees are required to work on public holidays. Further submissions were also provided by way of explanation about the overtime provisions contained in the Agreement. Additional undertakings were also proposed in regard to various allowances and the wage rate arrangements.

[7] 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.”

[8] This 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 having regard to the undertakings that have now been provided that the employees to be covered by the proposed Agreement can now be considered to be better off overall when compared to the conditions contained in the Award.

[9] As indicated, the Applicant has provided written undertakings in response to various matters raised by the Commission. A copy of those undertakings is attached and contained in Attachment A. I am satisfied that those undertakings will not cause financial detriment to any employee covered by the Agreement and that they will not result in substantial changes to the Agreement.

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

[11] 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