Spotless Facility Services Pty Ltd T/A Spotless

[2014] FWCA 2865

[2014] FWCA 2865

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Spotless Facility Services Pty Ltd T/A Spotless
(AG2014/417)

SPOTLESS SERVICES - STANWELL POWER STATION SECURITY SERVICES ENTERPRISE AGREEMENT 2013 - 2016

Security services
COMMISSIONER GREGORY	MELBOURNE, 2 MAY 2014

Application for approval of the Spotless Services - Stanwell Power Station Security Services Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Spotless Services - Stanwell Power Station Security Services Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It is made by Spotless Facility Services Pty Ltd T/A Spotless and the Agreement is a single-enterprise agreement.

[2] On reviewing the proposed Agreement the Commission raised a number of issues about which it sought further clarification. These included:

• potential inconsistencies between various clauses in the Agreement, particularly in regard to whether the aggregated or non-aggregated rates apply,



• the extent to which the Agreement covers part-time employees, and the entitlements that are to apply to casual employees, and



• whether the entitlements proposed for employees electing to work additional voluntary overtime satisfy the requirements of the “better off overall test”, particularly when an employee is working extended hours under this arrangement.

[3] A number of other inconsistencies were also identified including different descriptions of the intended span of daily hours in different parts of the agreement; different descriptions of the entitlements to apply to casual employees; the applicable rates to be provided to trainees; the entitlements to be paid to part-time employees working additional hours, and what entitlements are intended to apply when employees are involved in work related training.

[4] A further issue concerned the consultation term contained in the proposed Agreement and whether it reflected the term that is currently provided for by the amended Fair Work Regulations.

[5] The application also appeared to have been lodged outside of the 14 day period following the completion of voting on the Agreement. Section 185 of the Act requires that an application be lodged within this 14 day period, however, it also allows for an application to be made for an extension of time in circumstances where this requirement is not met.

[6] A detailed response was received from the Applicant in regard to these various issues.

[7] In regard to the late lodgement of the application it is submitted the relevant site manager at the location where the Agreement applied was not familiar with the particular requirements of the Act and omitted to inform the HR division that voting for the Agreement had concluded. The application was accordingly not lodged within the required timeframe. As indicated, s.185(3) of the Act provides a discretion to the Commission to extend the time in which an application is to be made, “If in all the circumstances, the Commission considers it fair to extend that period.” I am satisfied the delay in lodging in this case was an inadvertent oversight and it is fair in these circumstances to allow the time for making the application to be extended.

[8] The Applicant’s response also made reference to a range of additional matters by way of clarification and further explanation in response to the issues raised by the Commission. These deal with the following matters:

• the aggregate rate provided for in the proposed Agreement includes the calculation of the 15 percent penalty contained in sub clause 6.7.1 in regard to rotating and night shifts. As such, sub clause 6.7 does not provide employees with additional entitlements,



• the span of hours intended to be provided for in the Agreement is that contained in clause 6.1.4 of the Agreement, meaning that the span of hours for day shift is from 5.30 a.m. to 6.30 p.m.,



• the Applicant does not engage trainees at the site to which the Agreement applies and does not intend to do so,



• the Applicant also does not engage part-time employees at the site covered by the Agreement and does not intend to do so, and



• all training is currently completed when employees are on site. On the rare occasions when the Applicant might require employees to attend specific on-site training it continues to pay employees on the basis of the aggregate wage rate.

[9] The Applicant also proposed a series of undertakings in the following terms in response to the issues raised by the Commission.

• it undertakes to apply a 25 percent casual loading to the aggregates rates contained in clause 5.1.3 of the Agreement when engaging casual employees,



• it undertakes to not engage part-time employees under the Agreement and, consequently to remove clause 4.5.1(b) and 4.6 from the Agreement,



• it undertakes to pay all paid leave at the aggregate rates provided for in the Agreement,



• employees typically only work one additional voluntary shift per week on average. The Applicant undertakes that where possible it will limit the number of additional shifts that are worked by employees to one per week,



• the Applicant undertakes to pay all casuals a loading of 25 percent on the aggregate rate for ordinary time work and additional voluntary work. Therefore, sub clause 4.7 and 4.10 are to be read to include an additional loading of 25 percent, and



• the Applicant also undertakes that clause 3.2 of the Agreement will be replaced by the model consultation term currently provided for by the Fair Work Regulations.

[10] I have accepted the undertakings which have been given by the Applicant and are set out in the letter attached to this decision. They will form part of the Agreement.

[11] I am satisfied that each of the remaining requirements of ss.186, 187, 188 and s.190 as are relevant to this application for approval have been met.

[12] United Voice, 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.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 May 2014. The nominal expiry date of the Agreement is 14 December 2016.

COMMISSIONER

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