Reliable Security Protection Pty Ltd

[2024] FWCA 3547

[2024] FWCA 3547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Reliable Security Protection Pty Ltd

(AG2024/3204)

ENTERPRISE AGREEMENT BETWEEN RELIABLE SECURITY PROTECTION PTY LTD. AND EMPLOYEES OF RELIABLE SECURITY PROTECTION PTY LTD

Security services
DEPUTY PRESIDENT GRAYSON	SYDNEY, 9 OCTOBER 2024

Application for approval of the Enterprise Agreement between Reliable Security Protection Pty Ltd. And Employees of Reliable Security Protection Pty Ltd

1. Reliable Security Protection Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Enterprise Agreement between Reliable Security Protection Pty Ltd. And Employees of Reliable Security Protection Pty Ltd (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 11 July 2024, and the Agreement was made on 18 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

1. The NERR was erroneous in that the name of the proposed enterprise agreement was incorrect. The NERR issued provided the title of the Agreement as ‘Reliable Security Protection Pty Ltd. Enterprise Agreement’. The Agreement’s title clause reads: ‘Enterprise Agreement between Reliable Security Protection Pty Ltd. And Employees of Reliable Security Protection Pty Ltd’. The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5)(a) [OB1] of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

Terms of the Agreement

1. Clause 8 of the Agreement provides that:

(a)The Agreement can be amended by ‘mutual agreement in writing between the Company and the Employee Union/Organizational Representative’; and,

(b)The Agreement can be terminated by either party providing written notice to the other party, with termination being subject to notice period or requirements stipulated by applicable laws and regulations.

1. Amendment and termination of enterprise agreements may only be effected on the submission of specific applications to the Fair Work Commission. Accordingly, this clause will be unenforceable and have no effect.

Section 190 Undertakings

1. The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 October 2024. The nominal expiry date of the Agreement is 1 August 2028.

Variation

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity –and no further.

1. The Commission wrote to the parties seeking to clarify what appeared to be a discrepancy between Clause 3.1 of the Agreement, which provided that ‘managerial, supervisory, and confidential’ employees were excluded from coverage of the Agreement, and the Form F17B, which provided that the Agreement covered all of the Employer’s employees. On 8 October 2024, the Employer provided submissions clarifying that the Agreement covered all staff and all staff had voted on the agreement. The Commission indicated that in these circumstances, the Agreement would be varied to excise the reference to excluded staff.

1. I am satisfied that the error listed in [12] above is an error, defect or irregularity within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify this error ([PR780071]). The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 16 October 2024.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

<AE526345  PR780069>

[OB1]Correct section as of relevant date