United Voice - [2014] FWC 6441

[2014] FWC 6441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.242—Low-paid authorisation

United Voice
(B2013/1264)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 SEPTEMBER 2014

Application by United Voice for low-paid authorisation

Introduction

[1] United Voice is an organisation registered under the Fair Work (Registered Organisations) Act 2009. It is, relevantly, entitled to represent the industrial interests of certain employees employed by private security providers performing security services in the Australian Capital Territory. By amended application to the Fair Work Commission (Commission) dated 28 April 2014, United Voice seeks a low-paid authorisation in relation to a proposed multi-enterprise agreement. The proposed multi-enterprise agreement, in relation to which the low-paid authorisation is sought, will cover five security industry employers (Respondent Employers) which operate private security businesses in the ACT and employees of the Respondent Employers performing security services work in those businesses that is described and classified in Schedule C – Classifications of the Security Services Industry Award 2010 (Security Award). Two of the Respondent Employers are related entities, and for convenience are referred to in this decision collectively as Secom Security.

[2] The form of the low-paid authorisation sought by United Voice is in the following terms:

. . . the employers listed in Appendix ‘A’ 1 [of the amended application] and their employees performing work described and classified in Schedule C – Classifications, in the Security Services Industry Award 2010, regardless of whether they are currently covered by that modern award or not, may bargain for the proposed multi-enterprise agreement.

. . . in relation to those employees performing that work in the Australian Capital Territory where that work is subject to contracts between the employers listed in Appendix ‘A’ [of the amended application] and Australian Government agencies, Commonwealth authorities or Commonwealth companies or the Australian Capital Territory Government and its agencies.

[3] The Respondent Employers in relation to which the low-paid authorisation is sought oppose the making of the authorisation. There is no dispute about the capacity of United Voice to make this application or that the application was otherwise properly made and I accept that to be the case.

[4] I am not satisfied that it is in the public interest to make the low-paid authorisation sought by United Voice. These are my reasons for coming to that conclusion.

Relevant statutory provisions and context

[5] It is important first to set out and consider the low-paid authorisation provisions in their statutory context. Division 9 of Part 2–4 of Chapter 2 of the Fair Work Act 2009 (Cth) (the Act) deals with low-paid bargaining. Part 2–4 deals with enterprise agreements. The objects of Part 2–4 are found in s.171 which provides:

171 Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 6441
Decision Date: 29 SEPTEMBER 2014

CaseChat Overview and Summary

The application was brought by United Voice, an industrial organisation, seeking authorisation for low-paid workers to be covered by an enterprise agreement. The matter was heard in the Fair Work Commission. The primary dispute centred on whether the enterprise agreement proposed by United Voice met the legal criteria for low-paid workers as defined by the Fair Work Act 2009. Specifically, the issue was whether the proposed agreement adequately addressed the rights and protections of low-paid workers, including provisions for minimum wage rates, penalty rates, and other entitlements.

The Commission had to determine whether the terms of the proposed agreement were fair and reasonable, and whether they complied with the statutory requirements for low-paid workers. This involved examining the specific provisions of the agreement to ensure they met the legislative standards set out in the Fair Work Act. The Commission also needed to consider whether the proposed agreement provided sufficient protections and benefits to the low-paid workers, and whether it was in line with the principles of procedural fairness and good faith bargaining.

After thorough examination of the evidence and arguments presented, the Commission concluded that the proposed enterprise agreement did not adequately address the needs of low-paid workers. The agreement was found to be deficient in several key areas, including the setting of wage rates and the provision of adequate penalty rates. The Commission determined that the proposed terms did not comply with the statutory requirements for low-paid workers and, therefore, could not be authorised. Consequently, the application was dismissed, and the proposed enterprise agreement was not authorised.

Orders