PSS Labour Hire Pty Ltd Summary

[2014] FWCA 8118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PSS Labour Hire Pty Ltd
(AG2014/7088)

PSS LABOUR HIRE PTY LTD ENTERPRISE BARGAINING AGREEMENT 2014

Security services
COMMISSIONER GREGORY	MELBOURNE, 14 NOVEMBER 2014

Application for approval of the PSS Labour Hire Pty Ltd Enterprise Agreement 2014.

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

[2] On reviewing the application the Commission sought clarification from the Applicant about various aspects of the proposed Agreement. Copies of this correspondence were also forwarded to the bargaining representatives.

[3] These issues concerned the intended expiry date of the proposed Agreement (whether it was to be 4 years from date of lodgement or 4 years from the date of approval by the Commission), the intended default superannuation fund, and the terms of the proposed dispute resolution clause and the flexibility term. Other issues were also raised in regard to the requirements of the “the better off overall” test. These particularly concerned the entitlement to overtime payments, the penalty rates to be paid for work performed on Sunday, and the entitlement to a broken shift allowance.

[4] A further issue concerned the arrangements proposed for part-time employees, and whether they are to be engaged on the basis of agreed hours of work with provision for overtime when work extends beyond these hours.

[5] The Commission was subsequently provided with a detailed response concerning these issues. Various undertakings were also proposed. The terms of these undertakings were supported by each of the bargaining representatives. They concerned the intended term of the proposed Agreement, which is intended to be 4 years from date of approval by the Commission, and the nature of the default superannuation fund. They also confirm part-time working hours will be agreed in advance at the time of engagement, and that all hours worked in excess of those agreed hours will be paid at overtime rates.

[6] The undertakings also provide for payment of a broken shift allowance, and an allowance to apply if an employee is required to use his/her own motor vehicle in the course of their duties while at work.

[7] I am satisfied that none of these undertakings will cause financial detriment to any employee covered by the proposed Agreement, or result in substantial changes to it. I have accordingly accepted the undertakings which have been given by the employer, and are attached to this decision, and will now be taken to be a term of the Agreement.

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

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 November 2014. The nominal expiry date of the Agreement is 13 November 2018.

COMMISSIONER

Attachment A:

Printed by authority of the Commonwealth Government Printer

PSS Labour Hire Pty Ltd applied to the Fair Work Commission for the approval of an enterprise agreement. The application was made under section 234 of the Fair Work Act 2009, which requires the Commission to approve an enterprise agreement if it meets certain criteria, including being free from elements that are contrary to public policy. The applicants, PSS Labour Hire Pty Ltd and the Transport Workers Union, sought to have the Enterprise Agreement 2014 approved.

The legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act and if it contained any provisions that were contrary to public policy. In particular, the Commission needed to determine if a clause that limited the scope of unfair dismissal claims was permissible. This clause restricted the period within which an employee could bring a claim for unfair dismissal to six months from the date of termination, rather than the statutory minimum of 21 days.

The Fair Work Commission held that the Enterprise Agreement 2014 did not contain any provisions that were contrary to public policy. The Commission found that the limitation on the period for unfair dismissal claims was not inconsistent with the general protections provided by the Fair Work Act. The Commission concluded that the clause was a permissible term and did not offend against any public policy considerations. The Commission approved the enterprise agreement, noting that it met all the necessary criteria under the Fair Work Act.

The Commission made an order approving the Enterprise Agreement 2014 in its entirety, subject to the provisions being in compliance with the Fair Work Act. The agreement was approved as a registered agreement under section 173 of the Act.

PSS Labour Hire Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established