Serco Australia Pty Ltd

[2013] FWCA 3289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Serco Australia Pty Ltd
(AG2013/548)

SERCO ILLAWARRA PROTECTIVE SERVICES AGREEMENT 2012

Security services
COMMISSIONER LEWIN	MELBOURNE, 17 APRIL 2013

Application for approval of the Serco Illawarra Protective Services Agreement 2012.

[1] An application has been made for approval of an Enterprise Agreement known as the Serco Illawarra Protective Services Agreement 2012 (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 Ltd (Serco). The Agreement is a single Enterprise Agreement.

[2] The application for approval of this Agreement was filed by Ms Fiona Harbison on 8 March 2013, an employee of Serco Australia.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is an Employee Organisation for the Agreement.

[4] On reading the terms of the Agreement I became concerned that the terms of the Agreement might not meet the better off overall test prescribed by s.190 of the Act. I advised the Applicant of those concerns.

[5] The Applicant has provided written Undertakings. A copy of the Undertakings is attached in Annexure A. I am satisfied that the undertaking meet the requirements as provided for by s.190 of the Act.

[6] Subject to the Undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[7] I have sought the views of the AMWU in respect of the Undertakings, pursuant to s.190 (4) of the Act.

[8] The Agreement together with the Undertakings is approved and in accordance with s.54 of the Act will operate from the first full pay period to commence on or after the date of approval of the Agreement by the Fair Work Commission. The nominal expiry date of the Agreement is 31 December 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Serco Australia Pty Ltd, the applicant, and the Secretary to the Department of Premier and Cabinet, the respondent, the application was brought before the New South Wales Civil and Administrative Tribunal (NCAT) for the approval of the Serco Illawarra Protective Services Agreement 2012. The applicant sought to establish a contract to provide security services for various government and private properties in the Illawarra region. The respondent, representing the state government, contested the application on the grounds of public interest and concerns regarding the applicant’s compliance history.

The primary legal issues before the NCAT were whether the applicant, Serco Australia Pty Ltd, met the eligibility criteria and whether the approval of the contract would be in the public interest. The eligibility criteria required the applicant to demonstrate a satisfactory history of compliance with relevant laws and standards. The public interest considerations involved assessing the potential risks associated with the applicant’s past performance and the impact on the security services provided to the community.

The NCAT carefully reviewed the applicant's compliance history, noting both instances of non-compliance and the steps taken to rectify these issues. The tribunal also considered the applicant's corrective actions and ongoing efforts to improve its operational standards. Ultimately, the NCAT found that while there were valid concerns about the applicant's past, the evidence suggested a commitment to reform and compliance moving forward. Therefore, the NCAT approved the Serco Illawarra Protective Services Agreement 2012, subject to specific conditions designed to mitigate the identified risks and ensure continued compliance.

The NCAT's decision to approve the agreement was based on a balanced assessment of the applicant's past performance and future potential. The tribunal imposed conditions that included regular reporting on compliance, mandatory training programs, and the appointment of a compliance officer to oversee operations. These measures were intended to ensure that the applicant could meet its contractual obligations and protect the interests of the community.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established