Securecorp Protective Services Pty Ltd - [2024] FWCA 2210

[2024] FWCA 2210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Securecorp Protective Services Pty Ltd

(AG2024/1706)

SECURECORP PROTECTIVE SERVICES PTY LTD AND UNITED WORKERS UNION VICTORIAN STATE GOVERNMENT AGREEMENT 2024

Security services
DEPUTY PRESIDENT BELL	MELBOURNE, 14 JUNE 2024

Application for approval of the Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024 – s.218A variation to correct or amend obvious error.

Approval

An application has been made for approval of an enterprise agreement known as the Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Securecorp Protective Services Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 21 February 2023 and the Agreement was made on 15 May 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Notice of Employee Representational Rights (NOERR) included the words ‘insert locations’ instead of specifying the relevant locations. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The United Workers’ Union (UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 14 June 2024 and, in accordance with s.54 of the Act, will operate from 21 June 2024. The nominal expiry date of the Agreement is 14 June 2026.

Variation

The Agreement lodged appeared to contain an error in clause 3.1.2 of the Agreement regarding the Agreement title. Agreement clause 1 provides that the Agreement title is the ‘Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024’. Definitions clause 3.1.2 provides that the Agreement means ‘this Enterprise Agreement, the Securecorp and United Workers…

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

Case: [2024] FWCA 2210
Decision Date: 14 JUNE 2024

CaseChat Overview and Summary

The applicant, Securecorp Protective Services Pty Ltd, sought approval of a variation to the Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024. The variation was intended to correct or amend an obvious error within the original agreement. The matter was brought before the Fair Work Commission.

The primary legal issue before the Commission was whether the proposed variation to the agreement constituted an obvious error that required correction under section 218A of the Fair Work Act 2009. The Commission needed to determine if the error was indeed obvious and if the variation was necessary to correct it. Furthermore, the Commission had to consider whether the variation was in compliance with the legislative framework and if it would have any adverse impact on the parties involved.

In considering the matter, the Commission examined the original agreement and the proposed variation. The Commission found that the error in the original agreement was indeed obvious and that the proposed variation effectively corrected it. The Commission also determined that the variation was consistent with the provisions of section 218A and did not result in any adverse consequences for the parties. Consequently, the Commission approved the variation, finding it to be a necessary and appropriate correction to an error within the original agreement.

The Fair Work Commission approved the variation to the Securecorp Protective Services Pty Ltd and United Workers Union Victorian State Government Agreement 2024, correcting the obvious error identified within the original agreement. The Commission's decision was based on its finding that the variation effectively addressed the error and was in compliance with the relevant legislative provisions.

Orders