Serco Australia Pty Limited

[2014] FWCA 5322

[2014] FWCA 5322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Serco Australia Pty Limited
(AG2014/6556)

SERCO IMMIGRATION SERVICES AGREEMENT 2014

Corrections and detentions
COMMISSIONER BISSETT	MELBOURNE, 7 AUGUST 2014

Application for approval of the Serco Immigration Services Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Serco Immigration Services Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Serco Australia Pty Limited (Serco). The agreement is a single-enterprise agreement.

Better off overall test

[2] The relevant comparison instrument for security employees is the Corrections and Detention (Private Sector) Award 2010.

[3] The Union of Christmas Island Workers (UCIW), in its Form F18, states that it does not support the approval of the Agreement on two key grounds.

[4] Firstly, it says that some employees, mainly those working on Christmas Island, will not be better off under the Agreement than they would be if the Award applied. In this respect it says the Agreement fails the better off overall test (BOOT). It provides an example of a particular employee working a particular roster and shows that he will receive less pay under the Agreement than he would under the Award. It says that there are a substantial number of workers who work the same roster and all will be disadvantaged such that I can be satisfied the Agreement does not result in this class of employees being better off overall.

[5] Whilst the comparison of specific wages payable under the Agreement do show that the individual in question would not be better off on a wage-to-wage comparison under the Agreement than under the Award, the UCIW have failed to take into account other benefits payable and available to employees under the Agreement that are an improvement from those conditions under the Award. For example employees working for Serco on Christmas Island are entitled to a Christmas Island Allowance of $270.35 per fortnight, a travel concession of $2609 per annum as well as improvements in redundancy pay, escort allowance, and travel allowance amongst others.

[6] When all of these matters are taken into account (keeping in mind that the test is a better off overall test and not a line by line comparison test) I am satisfied that the person in question will be better off overall under the Agreement when compared to the Award. I am therefore satisfied that the class of employees on the same roster as the individual referred to will be better off overall under the Agreement when compared to the Award.

[7] The UCIW also say that a Client Service Manager (CSM) working the same roster as the employee mentioned above would not be better off overall. Whilst this may be the case; there is no evidence provided that there is a CSM working this roster or that a supervisor would work this roster such that I could be satisfied that he or she would not be better off overall. The task in considering the better off overall test is not to develop mythical rosters that are not worked for the purpose of determining the BOOT but rather to consider whether an award covered employee or prospective award covered employee would be better off overall. There is no evidence that a CSM would work the roster suggested by UCIW in their example.

[8] The UCIW also say that employees on Christmas Island working a weekend roster would not be better off overall. In examining the rosters provided to me it was not obvious that there was a ‘weekend’ roster such that an analysis of the BOOT could be undertaken. UCIW did not indicate who on the roster was affected by this. I am therefore not able to conclude that there is a class of employees on a weekend roster such that I could conclude they would not be better off overall under the Agreement compared to the Award.

[9] The second issue UCIW raise relates to matters it says should have been progressed under the expired Agreement in respect of arrangements for rates of pay for catering positions on Christmas Island. It says that the Agreement does not replicate the capacity to negotiate specific arrangements for these staff.

[10] That commitments that were given under an expired agreement are not repeated in the Agreement under consideration for approval does not mean the Agreement does not meet the BOOT. Matters under the previous Agreement should be progressed, to the extent permissible, under the dispute settling procedure of the expired agreement. This is not a matter that goes to whether or not the Agreement currently before the Commission should be approved.

[11] UCIW also raise a question as to the date of effect of the pay increase provided for in the Agreement.

[12] In response Serco submit that the date of effect of the pay increase, including any backdating, are not matters for the Agreement. In this respect I agree with the submissions of Serco. The Agreement will operate from 7 days after the date of approval by the Commission. The pay rates in the Agreement will operate from this time. If Serco intends to make back payments that is a matter for it and is not something that must be included in the Agreement.

[13] In considering if the Agreement passes the BOOT I have also had regard to the material in relation to rosters provided by Serco and United Voice (UV).

[14] In all of the circumstances I am satisfied that the Agreement passes the BOOT.

Conclusion

[15] In accordance with s.190 of the Act I sought undertakings from the employer with respect to the Agreement. I have accepted the undertakings provided.

[16] In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached as an annexure to this decision.

[17] Taking all of the material into account and the submissions of UCIW and UV, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[18] The UCIW, and UV being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2), I note that the Agreement covers the organisations.

[19] Whilst I note that UCIW is not named in the ‘parties’ clause of the Agreement it is this decision that provides unions with coverage by an Agreement. Whilst it is unfortunate that it is not named (but clearly was a bargaining representative for the Agreement) this is not a ground on which to not approve the Agreement or a matter conducive to undertakings being sought pursuant to s.190 of the Act.

[20] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 August 2014. The nominal expiry date of the Agreement is 31 December 2014.

COMMISSIONER

Annexure

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