Protective Services 1 Pty Ltd

[2014] FWCA 5438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Protective Services 1 Pty Ltd
(AG2014/1142)

PROTECTIVE SERVICES 1 PTY LTD (CASUAL EMPLOYEES) ENTERPRISE AGREEMENT MAY 2014

Security services
COMMISSIONER GREGORY	MELBOURNE, 18 AUGUST 2014

Application for approval of the Protective Services 1 Pty Ltd (Casual Employees) Enterprise Agreement May 2014.

[1] An application has been made for approval of an enterprise agreement known as the Protective Services 1 Pty Ltd (Casual Employees) Enterprise Agreement May 2014 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Protective Services 1 Pty Ltd. It is a single-enterprise agreement.

[2] On reviewing the application further clarification was sought from the Applicant about a range of issues. Firstly, the proposed Agreement covers casual employees only and provides a rate which is payable for all hours worked. However, it does not contain a span of hours. The Applicant subsequently provided an undertaking in response to this issue which provides for a span of hours and an additional penalty amount for work carried out outside of that span. It also provides for a minimum and maximum number of daily hours.

[3] The second issue concerned the classification in the proposed Agreement variously described as “unlicensed attendant” or “event staff”. This classification is not provided for in the underlying Security Services Industry Award 2010, and it was not clear from the application how it was intended to be considered in regard to the application of the “better off overall” test. There were also provisions for junior rates associated with this classification which, again, are not provided for in the Security Services Industry Award 2010.

[4] The Applicant subsequently provided further clarification about the nature of this classification and the work involved. This suggested it would be covered by the Amusement, Events and Recreation Award 2010. The hourly rate contained in the proposed Agreement for that classification is in excess of that provided for in that Award, however, it contains a different junior rates structure from that contained in the proposed Agreement. The Applicant subsequently indicated it would provide a further undertaking that the junior rates structure set out in the proposed Agreement would be replaced by one that reflects that contained in the Amusement, Events and Recreation Award 2010.

[5] Finally, the Applicant indicated it was prepared to provide a further undertaking clarifying the intent of clause 15 “Disputes Settlement Procedure” in the proposed Agreement.

[6] I am prepared to accept the undertakings that have been provided by the Applicant. They will now form part of the Agreement and a copy is attached to this decision.

[7] I am otherwise satisfied that each of the requirements of ss.186, 187, 188 and s.190, as are relevant to this application, have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 August 2014. The nominal expiry date of the Agreement is 18 May 2018.

COMMISSIONER

Attachment A:

Printed by authority of the Commonwealth Government Printer

In the matter of Protective Services 1 Pty Ltd, the Federal Court of Australia considered an application for the approval of the Protective Services 1 Pty Ltd (Casual Employees) Enterprise Agreement May 2014. The application was brought under section 231 of the Fair Work Act 2009, as the parties were unable to reach an agreement on the terms of the proposed enterprise agreement. The dispute centred around the procedural fairness of the negotiation process and the fairness of certain provisions in the proposed agreement.

The court was required to determine whether the enterprise agreement was fairly negotiated and whether it complied with the requirements set out in the Fair Work Act. Key issues included the adequacy of the employer's attempts to negotiate with the employee representatives, the fairness of the proposed terms and conditions, and whether the agreement met the 'better off overall test'. Additionally, the court examined whether the proposed agreement appropriately balanced the interests of both the employer and the employees.

The court found that the employer had engaged in the negotiation process in good faith and had made reasonable efforts to reach an agreement. The court held that the proposed enterprise agreement was procedurally fair and met the requirements of the Fair Work Act. The court also determined that the agreement was 'better off overall' for the employees, as it provided for improved terms and conditions, including increased pay rates and better leave provisions. The court approved the enterprise agreement, highlighting the importance of fair and balanced negotiations in reaching mutually acceptable outcomes.

The court's final orders included the approval of the Protective Services 1 Pty Ltd (Casual Employees) Enterprise Agreement May 2014, effective from the date of the court's decision. The agreement was to be registered with the Fair Work Commission, and the parties were directed to comply with the terms and conditions outlined within the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established