Trev’s Security

[2014] FWCA 2679

[2014] FWCA 2679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Trev’s Security
(AG2014/3594)

TREV’S SECURITY QCLNG WORKPLACE AGREEMENT 2013

Security services
COMMISSIONER GREGORY	MELBOURNE, 24 APRIL 2014

Application for approval of the Trev’s Security QCLNG Workplace Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Trev’s Security QCLNG Workplace Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Trev’s Security. The agreement is a single-enterprise agreement.

[2] After reviewing the application clarification was sought about various matters. These concerned, in particular, whether the loaded hourly rate proposed appropriately met the requirements of the “better off overall” test in all circumstances, particularly when additional overtime hours were being worked, and, secondly, whether the requirements of the National Employment Standards were satisfied in respect of employees being asked to work on public holidays.

[3] A further potential issue was also identified concerning the requirements of the Act that deal with the distribution of the notice of employee representative rights, and whether they had been complied with. They require that the notice be distributed to employees at least 21 days prior to the vote to approve the agreement taking place. The Applicant indicated that the notice was originally distributed on 24 July 2013, but was also given to a new staff member who commenced on 22 January 2014, with voting on the agreement subsequently concluding on 4 February 2014, 13 days later.

[4] The matter was also listed for hearing to enable these issues to be progressed.

[5] The Applicant subsequently provided a detailed spreadsheet of proposed employee rosters and confirmed that the amount of overtime hours each employee can work per week would be limited. It also indicated it would be prepared to provide an additional undertaking in regard to the amount of overtime to be worked by employees.

[6] It also provided a series of additional undertakings concerning work on public holidays and the scope of the dispute settlement procedure in the proposed agreement. I have accepted those undertakings given by the employer. They are attached to this decision and will form part of the Agreement.

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

[8] The Applicant also provided a further explanation regarding the distribution of the notice of employee representational rights. In response, I am satisfied that the notice was distributed in accordance with the requirements of the Act. Section 173(1) requires that an employer who is to be covered by a proposed enterprise agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to any employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

[9] Section 173(2) provides that the notification time for the proposed agreement, in the context of the present application, is the time when:

(a) the employer agrees to bargain, or initiates bargaining for the agreement.

[10] Section 173(3) continues to indicate that the employer must give the notice as soon as practicable and, in any case, not later than 14 days after the notification time for the agreement. The application in the present matter indicates employees were issued with the required notice on 24 July 2013, at the same time as the employer indicated it was initiating bargaining for a new agreement. A further copy of the notice was also given to a new employee who commenced on 22 January 2014.

[11] However, I am satisfied that by providing copies of the notice within 14 days of the notification time to those employees employed at the time that the employer has satisfied the requirements of section 173.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 May 2014. The nominal expiry date of the Agreement is 30 April 2017.

COMMISSIONER

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