United Voice v Secom Australia Pty Limited T/A SECOM Security
[2015] FWCFB 1776
•16 JULY 2015
| [2015] FWCFB 1776 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
SECOM Australia Pty Limited T/A SECOM Security
(C2015/1202)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 16 JULY 2015 |
Appeal against decisions [2014] FWCA 9388 and [2014] FWC 9097 of Commissioner Gregory approving the SECOM Security Australia - Employee Enterprise Agreement 2014-2017 – better off overall test correctly applied – permission to appeal refused.
[1] This decision concerns an appeal under s.604 of the Fair Work Act 2009 (the Act) by United Voice (the appellant or the union). The appeal is against the approval of an enterprise agreement which is titled SECOM Security Australia - Employee Enterprise Agreement 2014-2017 (the Agreement). 1 The appellant is covered by the Agreement, having filed a s.183 notice requesting that it be so covered. The employer covered by the Agreement is SECOM Australia Pty Ltd T/A SECOM Security (SECOM).
[2] In the hearing of the appeal, the appellant was represented by Mr Russell-Uren. Mr McDonald appeared, with permission, for Secom. At the conclusion of the hearing of the appeal, we ruled that permission to appeal was refused. These are our reasons for that ruling.
[3] Although the appeal is against the decision of Commissioner Gregory to approve the Agreement, it is also necessary to consider an earlier decision of the Commissioner, in which he dealt with numerous grounds raised by United Voice in opposition to the Agreement being approved. 2
Our approach to this appeal
[4] The approach we should take to this appeal was not in issue. It is accepted that United Voice has standing to lodge the appeal, it being, in terms of s.604(1) of the Act, a person aggrieved by the Commissioner’s decision to approve the Agreement.
[5] The notice of appeal originally raised what were described as jurisdictional grounds, as well as discretionary grounds relating to the better off overall test. 3 On appeal, the jurisdictional grounds were not pressed and the appellant only relied on its grounds which assert that the Commissioner was in error in finding that the Agreement passed the better off overall test.
[6] We proceed on the basis this is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision-maker. 4 Section 604(2) of the Act requires us to grant permission to appeal if we are satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. The public interest is not satisfied simply by the identification of error, or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...” 5
[7] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if permission is refused. 6
[8] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7
The background to the application for approval of the Agreement
[9] The Agreement covers employees in five classification levels, identified in the classification structure. They include security officers, mobile patrol officers, traffic controllers, control room operators, monitoring centre operators and supervisors. In the employer’s statutory declaration, filed in support of the application for approval, the relevant modern award for the purposes of the application of the better off overall test is identified as the Security Services Industry Award 2010 8 (the Award). The Agreement provides that employees may be engaged on a full-time, part-time or casual basis. At the time of the vote to approve the Agreement, there were 168 employees who would be covered by it, of whom 22 were identified as casual employees.
[10] Prior to the Agreement being approved, the employees and SECOM were covered by the SECOM Security - Employee Collective Agreement 2009-2014 (2009 agreement). The Agreement contains similar terms and conditions to those in the 2009 agreement, albeit, as described by SECOM, with increased rates of pay and some additional amendments which were sought by United Voice.
The proceedings before the Commissioner
[11] Prior to the hearing before the Commissioner, the parties each filed detailed written submissions. They also made oral submissions to the Commissioner at the hearing. We refer first to the written submissions of the parties. 9
[12] United Voice referred to the rates of pay in the Agreement. It submitted that they were “loaded” rates, absorbing payment for weekend penalties and seven overtime hours. It provided a number of tables of calculations of payments made by reference to assumed roster scenarios. The tables reflect what the union believed would be paid under the Agreement and compared that with what would be payable under the Award. In undertaking its calculations, it addressed employees working hours on Monday to Friday, as well as employees working on Saturday and Sunday. The union submitted that employees would suffer a significant reduction in wages when compared to their Award entitlements.
[13] In its written submissions, SECOM addressed each of the matters raised by United Voice in its written submissions, and also the calculations that had been undertaken by the union. It disagreed with the submission that penalty rates and an amount of overtime had been excluded and indicated the manner in which components for those hours had been incorporated in the loaded hourly rates in the Agreement. Additionally, it submitted that the calculations undertaken by United Voice were in error and had not been made on the basis of the pay rates in the Agreement, a fact that appears to have been conceded by the union. SECOM also submitted that the rosters used in the examples provided by United Voice were not rosters it used. It identified what the most common rosters were and provided calculations based on those rosters. On the basis of those calculations, it submitted employees would receive payments in excess of those provided for under the Award and that the Agreement passed the better off overall test.
[14] At the hearing before the Commissioner, each of the parties again addressed the better off overall test. We have considered the transcript of that hearing. In summary, United Voice addressed the position of casual employees in particular and submitted that, based on their working certain shifts which included Saturday and Sunday hours, they would be worse off. The union also raised issues about employees working night shifts and the manner in which annual leave loading was dealt with. SECOM submitted that United Voice had not been working off the version of the Agreement voted on by employees and filed for approval. It addressed the rosters that were worked at SECOM and the number of hours over a roster period which would incorporate a Sunday. It submitted that on the basis of its calculations, an employee was better off under the Agreement whichever roster he or she may work. At the end of the hearing, the Commissioner gave each of the parties an opportunity to file further written submissions. Both parties did so. 10
[15] We refer first to the further submissions filed by United Voice. It addressed the better off overall test and the need for the Commissioner to make an assessment about whether that test was met as at the time the application for approval of the Agreement was made. 11 It addressed the calculations which SECOM had included in its first written submissions and what it submitted were flaws in them. Calculations which had been undertaken by United Voice were annexed to its submissions. The union made detailed submissions about the day rate payable to employees working Monday to Friday, the loaded rate, the permanent night shift rate and payments to casuals. It again submitted that employees would not be better off under the Agreement.
[16] In its second written submissions, SECOM responded in detail to each of the matters which United Voice had addressed in their written submissions. It accepted that s.193(6) of the Act requires the Commissioner to assess the Agreement as at the test time and indicated that SECOM had undertaken its calculations in respect of the working patterns and arrangements which it then had in place. The rosters that were worked by employees and the averaging arrangements reflected in those rosters were the current practice and not, as the union had submitted, predicated on how SECOM might act in the future. It again identified the fact that the union had used “hypothetical rosters” rather than those which SECOM actually used. It concluded by indicating that the United Voice submissions had been “based on assumptions and hypothetical scenarios” rather than SECOM’s actual working patterns and arrangements. 12
The Commissioner’s decisions
[17] As we have earlier indicated, the Commissioner published two decisions. In the first, he considered the parties’ competing arguments about whether the Agreement passed the better off overall test. The decision is detailed and, in our opinion, comprehensive. In it, the Commissioner:
(a) addressed the submissions that had been made by United Voice and SECOM in relation to the application of the better off overall test and the manner in which it should be applied, consistent with the provisions of s.193 of the Act;
(b) dealt with a number of “specific issues.” In that respect, he addressed the submissions which had been made by reference to the categories of “Monday to Friday”, “the loaded rate”, “permanent nights” and “casual employees”. In doing so, he considered each of the arguments the parties had made by reference to employees within those categories. In that context, he also addressed the calculations the parties had made;
(c) indicated that he had also carried out his own assessments in an endeavour to understand how the provisions in the Agreement would apply in practice;
(d) decided that on the basis of the terms of the Agreement, and the rosters being used by SECOM, his calculations supported SECOM’s submission that employees would be better off overall. He expressed a concern that if different roster patterns or start and finish times were introduced by SECOM, then it may be that each category of employee would not be better off; and
(e) said that he would give further consideration to approving the Agreement if SECOM were to provide a number of undertakings, which he set out in his decision. United Voice was given an opportunity to comment on those undertakings.
[18] The undertakings sought by the Commissioner concerned the proportion of employees that may be engaged in each of the different classification levels, the span of hours in which ordinary time on Monday to Friday may be worked, the retention of roster patterns which continually rotate through different days of the week, and the need for casual employees to be engaged in a similar manner, and at similar times, to what had occurred in the period of September 2014 to November 2014. In this respect, we note that there was evidence before the Commissioner about the rosters worked during that period.
[19] In his second decision, the Commissioner noted that SECOM had provided the undertakings that had been sought by him. He said that United Voice had advised that it did not believe the undertakings could remedy the alleged deficiencies in the Agreement, and had highlighted the circumstances of casual employees in particular. The Commissioner indicated he had considered the Agreement’s terms in respect of casual employees’ hours and the additional loaded rate that they would receive for all hours worked. He referred to modelling which indicated that such employees could work in excess of 50 hours per week under the Agreement and still remain better off than under the Award. He noted that United Voice had given notice under s.183 of the Act that, in the event the Agreement was to be approved, it wanted to be covered by it. An approval decision was issued, to which the undertakings were annexed.
The grounds of appeal
[20] The matters raised in the grounds of appeal are largely those which were argued before the Commissioner at first instance. In our opinion, he properly considered each of the arguments and the findings made by him were, in our opinion, correct. Contrary to the submissions of United Voice, the findings made by the Commissioner cannot properly be described as “counterintuitive”. Nor has the union persuaded us he failed to apply the appropriate approach and provisions of the Act to form his view about whether the better off overall test was met. It is clear that the Commissioner gave close consideration to the submissions of the parties and to the detailed calculations that each of them had provided. Additionally, he gave close consideration to the potential for those calculations to be affected in the event SECOM was to change its rostering practices. To that end he sought, and was given, undertakings to constrain the opportunity SECOM may have to significantly alter the manner in which employees worked under the Agreement. We are not satisfied that any appealable error has been identified in the approach that he took, nor in deciding that the Agreement should be approved.
[21] Before we conclude our decision, we should refer to a submission raised by the appellant before this Full Bench which had not been made to the Commissioner. The submission was that the Commissioner was in error in not taking into account the fact that the Agreement would allow SECOM to roster a casual employee for a particular number of consecutive days, thereby resulting in the employee being worse off than under the Award. It submitted the undertakings given did not satisfactorily address this issue. There are a number of reasons why we were not persuaded to entertain this submission. The first is that the general approach taken by Full Benches is to not entertain arguments raised for the first time on appeal which could have been raised below. This is particularly so in this matter, as the argument relates to a discretionary consideration. It was not suggested that it constituted a jurisdictional or legal error. Furthermore, the argument was not sufficiently meritorious to establish an arguable case of appealable error, nor weigh in favour of permission to appeal being granted. The submission was also compromised by the fact that it was based on an erroneous factual premise. We do not need to say any more about this other than to note that the document relied on by United Voice as establishing that a particular employee had worked for “32 days straight” did not support this submission. The document, which was in evidence before the Commissioner, indicated that the employee had days off during the relevant period relied on by the union.
[22] We were not persuaded that the grounds of appeal raised any matters which warranted a finding that it was in the public interest to grant permission to appeal. We are also not persuaded the grounds establish that the Commissioner’s decision is attended with sufficient doubt to warrant its reconsideration nor that substantial injustice may result if permission is refused.
[23] It was for these reasons that we refused to grant permission to appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
S Russell-Uren for United Voice.
T McDonald for SECOM Australia Pty Ltd T/A SECOM Security.
Hearing details:
2015.
Sydney.
March 18.
1 [2014] FWCA 9388.
2 [2014] FWC 9097.
3 This test is defined in s.193 of the Act.
4 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194.
5 (2010) 197 IR 266 para. [27].
6 CFMEU v AIRC (1998) 89 FCR 200; Wan v AIRC (2001) 116 FCR 481.
7 Wan v AIRC (2001) 116 FCR 481 para. [30].
8 MA000016.
9 Appeal Book 32 and 40.
10 Appeal Book 75 and 97.
11 Fair Work Act 2009 s.193(6).
12 Appeal Book page 101.
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