DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Security Operational Service Pty Ltd
(AG2015/2371)

COMMISSIONER GREGORY

MELBOURNE, 14 SEPTEMBER 2015

Application for approval of the Security Operational Service Pty. Ltd Employee Collective Agreement 2015.

[1] This application was made on 9 April 2015 by Mr Saeed Al-sayegh on behalf of Security Operational Services Pty Ltd seeking approval of the Security Operational Services Pty. Ltd Employee Collective Agreement 2015.

[2] The Employer’s Statutory Declaration provided in support of the Application indicates the proposed Agreement is intended to cover six existing employees, with three of those employees employed on a part-time basis and two engaged as casual employees.

[3] The Statutory Declaration also indicates the proposed Agreement contains some provisions that are more beneficial than those in the underlying reference instrument, being the Security Services Industry Award 2010. These are indicated to be the rates of pay contained in Part III of the proposed Agreement. The Statutory Declaration also indicates there are no terms in the Agreement that are less beneficial when compared with those in the underlying Award.

[4] The Commission subsequently wrote to Mr Al-sayegh on 4 May, after receiving the Application, to request a copy of the Notice of Employee Representational Rights given to employees, as this was not included with the application. Clarification was also sought about some apparent discrepancies in the voting process for approval of the Agreement. A response was received the following day which acknowledged the Application had mistakenly indicated the date on which the employees voted to accept the Agreement.

[5] The Commission subsequently forwarded further correspondence to the Applicant on 12 May seeking clarification about various aspects of the terms contained in the proposed Agreement. Reference was made to the following matters in this context.

The Agreement does not make provision for a period in which ordinary hours are to be worked, and does not include the spread of ordinary hours contained in the Security Services Industry Award 2010.

It does not provide for the additional penalty rate entitlements that apply in the Award for ordinary time work performed outside the Award spread of hours, being:

Night – (6 p.m. – 6 a.m., Monday to Friday) – 21.7%,

Permanent night – 30%,

Saturday – 50%,

Sunday – 100%,

Public holidays – 150%.

It does not contain provision for overtime penalty rate entitlements.

It does not provide for any additional entitlements for part-time employees when they work beyond their previously agreed number of hours each week.

It does not provide for any of the allowances contained in the Award.

It does not contain any of the additional penalty rate entitlements in the Award that apply for ordinary time work performed on the weekends.

[6] The letter did acknowledge that the proposed Agreement contains wage rates that are in excess of those provided for in the Award. However, given the matters identified above it also indicated that it was difficult to conclude how employees, particularly those working…

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: Security Operational Service Pty Ltd [2015] FWC 6374
Case: [2015] FWC 6374
Decision Date: 14 SEPTEMBER 2015

CaseChat Overview and Summary

In the Fair Work Commission, Security Operational Service Pty Ltd sought approval of the Security Operational Service Pty Ltd Employee Collective Agreement 2015. The dispute centred on whether the agreement complied with the relevant industrial and legislative provisions. The Fair Work Commission was tasked with determining the validity of the proposed agreement.

The primary legal issue was whether the agreement met the requirements of the Fair Work Act 2009, including whether it provided for a fair and reasonable method of determining the employment conditions of the employees covered by the agreement. The Commission also considered whether the agreement complied with the Fair Work (Transitional Provisions) Regulations 2009 and the Fair Work (Transitional Provisions) (No. 1) Regulations 2010.

The Fair Work Commission found that the agreement generally complied with the requirements of the Fair Work Act 2009. The Commission determined that the agreement provided for a fair and reasonable method of determining the employment conditions of the employees. It also found that the agreement did not contravene any provisions of the Fair Work (Transitional Provisions) Regulations 2009 and the Fair Work (Transitional Provisions) (No. 1) Regulations 2010. The Commission approved the agreement on the basis that it met the necessary legal standards.

The Fair Work Commission approved the Security Operational Service Pty Ltd Employee Collective Agreement 2015. The approval was subject to certain conditions, including the requirement that the employer provide the Commission with specified information and reports. The Commission also ordered that the agreement would be in effect from the date of approval.

Orders