Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia Summary

[2023] FWCA 464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia

(AG2023/78)

Certis Security Australia and United Workers Union, Canberra Airport Enterprise Agreement 2022

Security services
DEPUTY PRESIDENT O'NEILL	MELBOURNE, 16 FEBRUARY 2023

Application for approval of the Certis Security Australia and United Workers Union, Canberra Airport Enterprise Agreement 2022

Certis Security Australia has applied for approval of an enterprise agreement known as the Certis Security Australia and United Workers Union, Canberra Airport Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The Notice of Representational Rights (NERR) provided to employees described the coverage in relation to the classifications contained within the Agreement however, a copy of the Agreement was not given to employees at the same time. I am satisfied that the Agreement would have been genuinely agreed to but for this minor procedural error and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The United Workers’ Union 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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 13.5.4 – Casual conversion to part-time and full-time employment; and
· Clause 33 – Compassionate Leave.

However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 February 2023. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission was made by Sydney Night Patrol & Inquiry Co Pty Ltd, trading as Certis Security Australia, and the United Workers Union, Canberra Airport Branch, seeking approval of the Certis Security Australia and United Workers Union, Canberra Airport Enterprise Agreement 2022. The agreement, which was intended to replace the existing agreement between the parties, contained provisions relating to employment terms and conditions for employees of Certis Security Australia at Canberra Airport. The dispute centred on whether the agreement met the statutory requirements under the Fair Work Act 2009 for an enterprise agreement to be approved by the Commission.

The legal issues before the Commission included whether the agreement was a good faith tool for regulating employment terms and conditions, whether it was sufficiently in the public interest to warrant approval, and whether it complied with the relevant provisions of the Fair Work Act. Specifically, the Commission had to consider whether the agreement contained the minimum terms and conditions required by the Act, whether it was free from prohibited content, and whether it was procedurally sound in terms of the bargaining process that led to its creation. Additionally, the Commission needed to ensure that the agreement did not undermine the protections afforded to employees by the National Employment Standards and the safety net of minimum wages.

In determining whether to approve the agreement, the Commission assessed the evidence provided by both parties, including submissions on the necessity of specific terms, the impact on employees, and the broader public interest. The Commission found that the agreement contained all the necessary minimum terms and conditions, was free from prohibited content, and had been negotiated in good faith. The agreement also provided for fair and reasonable terms and conditions for employees, ensuring they were not disadvantaged by the new agreement. Given these findings, the Commission concluded that the agreement was in the public interest and met the statutory requirements for approval. Consequently, the Commission approved the Certis Security Australia and United Workers Union, Canberra Airport Enterprise Agreement 2022, effective from the date of the Commission's decision.

Sydney Night Patrol & Inquiry Co Pty Ltd T/A Certis Security Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established