Sapphire City Security Services and Patrols Pty Ltd

[2015] FWC 7819

[2015] FWC 7819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185— Enterprise Agreement

Sapphire City Security Services and Patrols Pty Ltd
(AG2015/3273)

COMMISSIONER GREGORY MELBOURNE, 20 NOVEMBER 2015

Application for approval of the Sapphire City Security Services and Patrols Pty ltd Enterprise Agreement 2015.

[1] This matter concerns an application by Sapphire City Security Services and Patrols Pty Ltd (“Sapphire City”) for approval of the Sapphire City Security Services and Patrols Pty Ltd Enterprise Agreement 2015. The Agreement a single enterprise Agreement.

[2] After reviewing the application and the terms of the proposed Agreement the Commission sought clarification about certain issues to do with the rates of pay. The Agreement, which is only intended to cover employees employed on a casual basis, proposes two separate rates of pay for the two classification levels, being a day shift rate, and a night shift rate with no provision for additional penalty rate entitlements for weekend work. The Commission accordingly sought clarification about satisfaction with the requirements of the better off overall test for employees working predominantly in the evenings or at weekends.

[3] The Commission subsequently received a response from the Applicant about these matters. However, it was decided that the application should be set down for hearing because of various on-going issues to do with satisfaction with the relevant statutory requirements.

[4] Mr Ian Moylan appeared on behalf of Sapphire City in those proceedings, indicating he was employed by the business as the Supervisor of the Patrol Section.

[5] Mr Moylan indicated in response to a series of questions from the Commission that the proposed Agreement is intended to cover three employees, who are each employed on a casual basis. He also indicated the business is contracted to provide night patrols, which generally commence at 8.30 pm and conclude at 5 am, and involve a total of 56 hours each week. It also has a day shift roster based around hours between 8 a.m. to 5 p.m. for a total of around 24 hours each week. He also indicated these arrangements can vary, particularly when additional work is obtained from time to time.

[6] Mr Moylan also said that the business attempts to share the various rosters amongst the existing employees but one employee, in particular, was predominantly involved in the night shift work. He also stated that when the work was aggregated over the course of a 12 month period it would involve work on 11 public holidays, 51 Saturdays, 50 Sundays and 253 weekdays, involving what would be an average hourly wage rate over that 12 month period of $29.77.

[7] He also indicated it was now proposed to provide a casual day shift rate of $25.95 for a level 1 employee and $26.74 for a level 2 employees. A rate of $30.08 was also now proposed as the night shift rate for a level 2 casual employee.

[8] Mr Moylan also indicated in conclusion that “we can only pay so much” 1 and the intent of the current proposals was, in particular, to simplify the pay arrangements and provide certainty in tendering for work. He also indicated the casual arrangements being offered provided a degree of flexibility for the employees.

[9] Following these proceedings the Commission again made contact with the Applicant and in that correspondence set out the casual rates that apply for work at various times of the week, including the night span rate, and the relevant hourly rates that apply for work on Saturday and Sunday. The Commission also indicated in its correspondence, “based on these rates it is difficult to see how an Agreement based on an average rate of $29.77 can satisfy the requirements of the ‘better off overall test’ in all the circumstances. While it may provide an additional benefit to employees working Monday – Friday during daytime hours it would not seem to satisfy the requirements of the test in regard to those employees working in the evenings, particularly when permanent evening work is involved.” 2 The Commission also indicated that while it can accept undertakings it was not able to do so in circumstances where those undertakings result in substantial changes to the proposed Agreement.

[10] The Commission then received a further response from Mr Moylan which emphasised that the proposed Agreement provided a better outcome for the employees than previous agreements that had covered them in that it provided for annual wage increases. He reiterated the casual nature of the work engagements which provided flexibility for the employees, particularly when they wished to take extended periods of time off. He also indicated the proposed day shift and night shift rates would leave two of the three employees better off “while if we were to implement a mandatory rotation of the shifts all the employees would be better off.” 3 He also said he believed the employees to be covered by the Agreement were supportive of what was being proposed.

[11] I have again reviewed the application and the terms and conditions in the proposed Agreement, together with the additional submissions made by Mr Moylan. I readily acknowledge what has been said about the competitive nature of the security services industry, and the fact there is often little long-term certainty in regard to the contracts entered into by a business from time to time.

[12] However, I am also required to have particular regard to the statutory requirements which govern the determination of this matter, particularly the requirements of the “better off overall test.” Without setting those requirements out in full detail at this point s.193 of the Act states in part as follows:

“193 Passing the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.” 4

[13] Under the terms and conditions contained in the Security Services Industry Award 2010 a casual employee employed at the Security Officer Level 2 classification is entitled to an hourly rate of $24.97 for work performed during the day on Monday – Friday. The equivalent night span rate is $29.30, although a higher rate can also apply where permanent night work is involved. Additional Saturday penalty rates of time and a half and double time also apply for work performed on those days. Based on these rates and the rates now proposed in the Agreement I am not satisfied that the requirements of the better off overall test can be met.

[14] I have also considered whether it might be appropriate to seek further undertakings to deal with the on-going concerns I have regarding the existing terms of the proposed Agreement. However, s.190 also provides that an undertaking can only be accepted in circumstances where it is not likely to result in substantial changes to the Agreement. As indicated in this decision a range of matters have been canvassed in an attempt to establish whether the Agreement can be approved. I am of the view that any further attempt to now vary the wage rates, which are clearly an integral part of the Agreement, would result in substantial changes to it and make it inappropriate for further such undertakings to be accepted.

[15] For all of the reasons indicated above I am not satisfied the Agreement can be approved, given the existing statutory requirements. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr Ian Moylan appeared on behalf of the Applicant.

Hearing details:

2015.

Melbourne (by telephone):

20 October

Final written submissions:

Final letter received from the Applicant on 12 November.

<Price code A, PR573928>

 1   Transcript at PN116

 2   Letter sent from Commissioner Gregory to Ian Moylan by email dated 27 October 2015

 3   Letter sent from Ian Moylan to Commissioner Gregory by email dated 12 November 2015

 4   Fair Work Act 2009 (Cth) at s.193(1)

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