Rapid Response Security Pty. Ltd. T/A Rapid Response Security - [2013] FWC 3731

[2013] FWC 3731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Rapid Response Security Pty. Ltd. T/A Rapid Response Security
(AG2013/5861)

COMMISSIONER LEE

MELBOURNE, 17 JUNE 2013

Application for approval of the Rapid Response Security - Enterprise Agreement -2013.

[1] An application has been made for approval of a single enterprise agreement known as the Rapid Response Security - Enterprise Agreement - 2013 (the Agreement). The application was made by Rapid Response Security Pty Ltd T/A Rapid Response Security (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The application for approval was lodged with the Fair Work Commission (the Commission) on 2 April 2013. The Agreement will apply in the security services industry.

[2] Part 2-4 of the Act (within which s.185 may be found) provides for the making of enterprise agreements. Section 171 of the Act sets out the objects of Part 2-4 as follows;

“ 171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) makingbargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.

[3] Section 186 sets out the general requirements for when the Commission must approve an enterprise agreement. Section 187 sets out additional requirements for when the Commission must approve an enterprise agreement.

[4] Section 186 of the Act provides:

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

(d) the agreement passes the better off overall test.

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Rapid Response Security Pty. Ltd. T/A Rapid Response Security [2013] FWC 3731
Case: [2013] FWC 3731
Decision Date: 17 JUNE 2013

CaseChat Overview and Summary

The case involved Rapid Response Security Pty. Ltd., trading as Rapid Response Security, which sought approval for the Rapid Response Security – Enterprise Agreement 2013. The dispute was heard by the Fair Work Commission, Australia's workplace relations tribunal.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009. This involved assessing whether the agreement was fairly negotiated, contained necessary minimum terms and conditions, and was in the best interest of the employees involved. The Commission also had to determine whether the agreement met the specific requirements for an enterprise agreement to be approved, including the need for a majority of employees to vote in favour of the agreement.

The Commission found that the agreement was fairly negotiated and contained all necessary minimum terms and conditions. It concluded that the agreement was in the best interest of the employees and met all the statutory requirements for approval. The Commission noted that a majority of employees had voted in favour of the agreement, which was a critical element for its approval. The Commission was satisfied that the agreement provided fair and reasonable terms for the employees, and it approved the Rapid Response Security – Enterprise Agreement 2013.

The Fair Work Commission approved the Rapid Response Security – Enterprise Agreement 2013, finding it to be fairly negotiated, containing all necessary minimum terms and conditions, and in the best interest of the employees. The agreement was supported by a majority of employees, meeting the statutory requirements for approval. The Commission's decision was based on a comprehensive assessment of the agreement's provisions and the circumstances surrounding its negotiation and adoption.

Orders