Section One Security Pty Ltd

[2018] FWC 4469

[2018] FWC 4469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Section One Security Pty Ltd

(AG2018/1293)

Commissioner McKinnon MELBOURNE, 30 JULY 2018

Application for approval of the Section One Security Services Pty Ltd (Casual Employees) Enterprise Agreement 2018.

1. Application has been made by Section One Security Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Section One Security Services Pty Ltd (Casual Employees) Enterprise Agreement 2018 (the Agreement). The Agreement is intended to incorporate the Security Services Industry Award 2010[1] (the Award).

1. On an initial assessment of the Agreement, concerns were identified about whether the requirements of s.180 of the Act were met as well as whether the Agreement passed the better off overall test having regard to the recent Loaded Rates Decision[2].

1. These concerns were communicated to the Applicant and responses sought on 11 July 2018 and 19 July 2018. No response has been received from the Applicant.

1. Section 180(3) – (4) of the Act provides:

“ (3) The employer must take all reasonable steps to notify the relevant employees of the following by the start of the access period for the agreement:

(a)the time and place at which the vote will occur;

(b)the voting method that will be used.

(4) The access period for a proposed enterprise agreement is the 7-day period ending immediately before the start of the voting process referred to in subsection 181(1).”

1. A Full Bench of the Commission recently held that the access period in section 180(4) means seven clear calendar days ending immediately prior to the day on which the voting process commenced.[3]

1. The Form F17 filed with the application indicates that voting for the Agreement commence on 16 March 2018. That means the access period started at 12.01am on 9 March 2018 and the Applicant was required to take all reasonable steps to notify employees under section 180(3) by the start of the access period, that is, by no later than the end of the day on 8 March 2018 or earlier.

1. Based on the material filed with the application employees were notified of the time, place and method of the vote on 9 March 2018.[4] There is no material to indicate any other reasonable steps taken to effect notification prior to 9 March 2018.

1. Section 193(1) of the Act provides as follows:

“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.”

1. The Agreement contains rates of pay ranging from 1.94% - 9.43% above the Award. It does not provide penalties for overtime or public holidays. The shift work and weekend work penalties and minimum engagement periods in the Agreement are detrimental to employees compared to the Award. There is no provision in the Agreement for annual leave loading or crib breaks. The benefits provided by the Agreement are, in my assessment, not sufficient to compensate for the detriments that will arise if the Agreement is approved.

1. The Applicant did not respond to the opportunity to provide further material in support of its application having regard to the Loaded Rates Decision was provided.

1. On the material before me, I am not satisfied that the Agreement passes the better off overall test or that the Agreement was genuinely agreed having regard to section 180(3). The result is that the Agreement cannot be approved.

1. The application is dismissed.

COMMISSIONER

<PR609533>

[1] MA000016

[2] [2018] FWCFB 3610, [115]

[3] CFMMEU v CBIConstructors Pty Ltd[2018] FWCFB 2732 at [42]

[4] Form F17 filed with the Commission on 4 April 2018 at Q2.5 and Attachment 5

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