Serco Traffic Camera Services (Vic) Pty Ltd

[2014] FWCA 1387

[2014] FWCA 1387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Serco Traffic Camera Services (Vic) Pty Ltd
(AG2013/12055)

SERCO TRAFFIC CAMERA SERVICES EMPLOYMENT AGREEMENT 2013

Miscellaneous
COMMISSIONER BULL	SYDNEY, 26 FEBRUARY 2014

Application for approval of the Serco Traffic Camera Services Employment Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Serco Traffic Camera Services Employment Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 8 January 2014, the Commission wrote to the Applicant, the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Community and Public Sector Union (CPSU), being bargaining representatives for the Agreement and the employee bargaining representatives, with respect to a number of concerns it had with aspects of the Agreement. In particular, the concerns related to the hours of work, public holidays, meal allowance, casual loading, and overtime.

[3] Correspondence was received from the Applicant in relation to the issues raised by the Commission on 15 January 2014.

[4] Accompanying the application for approval of the Agreement, the ASU and the CPSU filed a Form F18 - Declaration of employee organisation in relation to an application for approval of enterprise agreement. The ASU and the CPSU both declared in their Form F18 that the Union supported the approval of the Agreement by the Commission.

[5] On 13 January 2014, correspondence was received from the CPSU and an employee bargaining representative outlining concerns they had with respect to certain aspects of the Agreement. In particular, the concerns related to part-time employees, annual leave loading and shift workers.

[6] Upon review of the correspondence from the Applicant and the concerns raised by the CPSU and the employee bargaining representative, the Commission listed the matter for conference.

[7] A conference was held on 29 January 2014. The Applicant attended the conference in person while the CPSU, the ASU and the employee bargaining representatives appeared via telephone.

Part-time employees

[8] During the conference the CPSU advised the Commission that it did not support the approval of the Agreement based on the information that it had been provided with to date. In particular, the CPSU’s concerns related to the part-time employees not being provided with specified hours of work.

[9] Clause 10.3 - Part-time employment of the Miscellaneous Award 2010 (the Award), being the relevant modern award for the purposes of the better off overall test, states that with respect to a part-time employee, the employee and the employer must agree in writing on a regular pattern of work including the hours to be worked and the starting and finishing times on each day. Further, the Award states that these hours once fixed can be varied at any time by agreement, however, any agreed variation to the regular pattern of hours will be recorded in writing.

[10] The CPSU submitted that because of the work undertaken by the Applicant it is difficult to define the start and finishing times, however, defining the number of weekly hours should not be affected but the Applicant has declined to discuss this to date.

[11] The CPSU stated that this issue impacts on the employee’s pay as the part-time employees are only paid overtime when their hours of work exceed 76 hours in a fortnight. The CPSU submitted that the number of part-time employees working less than 76 hours a fortnight has increased as the Applicant has employed more part-time employees, reducing the hour’s available to other employees.

[12] The CPSU told the Commission that it had unsuccessfully attempted to obtain rostering and timesheet information from the Applicant in order to investigate this concern.

[13] During the conference the Applicant undertook to provide an analysis of a number of part-time employees to demonstrate that part-time employees were better off overall under the Agreement when compared to the Award despite not having an agreed regular pattern of work and to provide data to show the actual hours of work undertaken by part-time employees from the past 12 months. It was agreed during the conference that any concerns relating to the information provided by the Applicant would be raised in writing with the Commission within 7 days of receiving the correspondence.

[14] This information was provided to the Commission, the CPSU, the ASU and the employee bargaining representatives on 11 February 2014. The CPSU wrote to the Commission on 18 February 2014 and stated that based on the information provided, the CPSU does not oppose the making of the Agreement.

[15] No correspondence was received from the ASU or the employee bargaining representatives.

Meal allowance

[16] In its correspondence to the Applicant and the bargaining representatives, the Commission noted that at clause 19 – Meal Allowance, of the Agreement it provides that where an employee is called into work with less than 12 hours’ notice, he/she will be entitled to a meal allowance of $15.00. The Award, at sub clause 15.4 that where an employee is required to work more than one hour of overtime after the employee’s ordinary time of ending work without being given 24 hours’ notice must be either provided with a meal or paid a meal allowance of $16.67. If the overtime exceeds four hours a further meal allowance of $15.09 must be paid.

[17] The Applicant submits that the frequency of employees’ being requested to work overtime with less than 24 hours’ notice is extremely low and when this happens it is compensated for by employees receiving substantially higher minimum rates of pay compared to the Award.

[18] The Applicant provided calculations to demonstrate this.

Casual loading

[19] The Commission notes that at sub clause 10(e) of the Agreement it provides that a casual employee will be paid an additional loading of 20 per cent. The Award provides for a 25 per cent loading with respect to casual employees.

[20] The Applicant submits that where an employee is engaged as a casual they would be better off by $3.51 to $13.61 per hour dependent on the classification under the Agreement when compared to the Award.

[21] The Applicant provided calculations to demonstrate this.

Span of ordinary hours

[22] In its correspondence to the Applicant and the bargaining representatives, the Commission notes that the Agreement provides for the following span of ordinary hours:

● Sub clause 22(c) of the Agreement provides for the span of ordinary hours between 7:00am and 7:00pm, irrespective of the day of the week for mobile road safety camera operators.
● Sub clause 23(b) of the Agreement provides for the span of ordinary hours between 5:30am and 8:30pm, Monday to Friday for evidence management employees.
● Sub clause 24(b)(i)(ii) of the Agreement provides for the span of ordinary hours for Operations Support Officers between 5:30am and 8:00pm, irrespective of the day of the week and for SOC employees 5:30am and 8:30pm, Monday to Friday.

[23] The Award at subclause 22.2(a) states that all work performed by an employee, other than a casual, outside the hours of 7:00am and 7:00pm, Monday to Friday, and on Saturday which is not overtime, must be paid at the rate of 120% of the relevant minimum wage and sub clause 22.2(b) states that all work performed by an employee, other than a casual, on Sunday which is not overtime must be paid a the rate of 150% of the relevant minimum wage. Further, under the Award at sub clause 22.2(c)(d) it provides that casuals who perform work outside the hours of 7:00am and 7:00pm, Monday to Friday, must be paid at the rate of 145% and on a Sunday 175%.

[24] The Applicant was requested to provide correspondence outlining how employees are better off overall, given the increase in the ordinary span of hours

[25] The Applicant submits that the higher rates of pay contained in the Agreement compensates for the additional span of hours. The Applicant has provided a number of calculations to demonstrate that employees are better off overall under the Agreement, despite the increase in the ordinary span of hours.

Overtime

[26] The Commission notes at sub clause 26(b) of the Agreement it provides that an employee who performs overtime will be granted either time off at the rate of one hour for each additional hour worked, with no loss of pay, or payment for the hours worked at a rate of time and one half.

[27] The Award at sub clause 22.1(a) provides that for all time worked in excess of an average of 38 hours per week by a full-time employee or in excess of the agreed number of hours per week by a part-time employee is overtime and must be paid at the rate of 150% of the relevant minimum wage for the first three hours and 200% of the relevant minimum wage thereafter.

[28] The Commission requested correspondence outlining how employees are better off overall under the Agreement with respect to the overtime penalty.

[29] The Applicant provided a number of indicative examples where employees have performed overtime. The examples provided demonstrates that employees are better off overall where overtime is worked.

Public holidays

[30] The Commission notes that at subclause 29(h) of the Agreement, with the exception of Christmas Day, Good Friday and New Year’s Day, employees who are required to work on a public holiday will be paid at double time.

[31] The Award at sub clause 22.2(e) provides that all work performed by an employee on a public holiday is to be paid at the rate of 250% of the relevant minimum wage. The Commission requested correspondence outlining how employees are better off overall given that the penalty paid to an employee who works on a public holiday is less than the Award.

[32] The Applicant submits that the only sections of the workforce that are required to work on public holidays are the Mobile Road Safety Camera Operators and Operations Support Officers. The Applicant provided fortnightly periods where public holidays have occurred and employees have worked those days. The comparisons provided demonstrate that employees are better off overall under the Agreement.

Annual leave loading

[33] In its correspondence dated 13 January 2014, the CPSU raised a concern that the Agreement does not provide an entitlement to annual leave loading. The Applicant submits that the annual leave loading is incorporated into the minimum salaries at clause 15 of the Agreement and on average the salaries are 36 per cent better off when compared to the Award classification levels.

Undertaking

[34] Upon request from the Commission, an undertaking with respect to clause 37 - Grievance and dispute settlement procedure,applying to any disputes that arise under the National Employment Standards, has been provided by the Applicant.

[35] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[36] I have sought the views of the bargaining representatives, in respect of the undertaking, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertaking provided.

[37] Following the conference held and upon review of the correspondence, calculations and undertaking provided, I am satisfied that employees are better off overall under the Agreement.

[38] The Agreement covers employees who are employed in the state of Victoria in the job classifications set out in the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[39] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[40] The ASU and the CPSU 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 these organisations.

[41] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 5 March 2014. The nominal expiry date of the Agreement is 31 October 2016.

COMMISSIONER

Annexure A

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