DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Point 2 Point Secure Pty Ltd
(AG2019/64)

POINT 2 POINT SECURE SOUTH AUSTRALIA OPERATIONS ENTERPRISE AGREEMENT (2018)

Security services
COMMISSIONER PLATT	ADELAIDE, 30 APRIL 2019

Application for approval of the Point 2 Point Secure South Australia Operations Enterprise Agreement (2018).

[1] An application has been made for approval of an enterprise agreement known as the Point 2 Point Secure South Australia Operations Enterprise Agreement (2018) (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Point 2 Point Secure Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 1 April 2019.

[3] On 12 April 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 29 April 2019. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES); and

• The second sentence of clause 33.1 shall no longer apply.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 May 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Point 2 Point Secure Pty Ltd applied to the Fair Work Commission for approval of the Point 2 Point Secure South Australia Operations Enterprise Agreement (2018). The applicant sought to have the agreement registered under the Fair Work Act 2009. The application was opposed by the Australian Council of Trade Unions and the Electrical Trades Union of Australia, who argued that the agreement did not meet certain legal requirements.

The primary legal issues before the Commission were whether the agreement was a "bargained" agreement and whether it met the various statutory requirements set out in the Fair Work Act, including provisions regarding pay, conditions, and the right to free association. The Commission also considered whether the agreement complied with the "better off overall test," ensuring that employees were not worse off under the new agreement than they would be under the applicable award.

In its decision, the Fair Work Commission found that the agreement was indeed a bargained agreement, having been negotiated between the employer and employees' representatives. The Commission determined that the agreement met the statutory requirements and satisfied the better off overall test. The Commission noted that the agreement provided for fair and reasonable terms and conditions, including provisions for pay rates, leave entitlements, and dispute resolution mechanisms. The opposition's arguments were rejected as the Commission found no substantial breaches of the Act.

The Fair Work Commission approved the Point 2 Point Secure South Australia Operations Enterprise Agreement (2018) and ordered that it be registered under the Fair Work Act. The agreement was to be in effect from the date of registration and would apply to the relevant employees covered by the agreement. The Commission's decision was based on the findings that the agreement was fairly negotiated and met all statutory requirements, providing for fair and reasonable terms and conditions for the employees.

Point 2 Point Secure Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established