DECISION

Fair Work Act 2009
s.739—Dispute resolution

United Workers’ Union
v
Wilson Security Pty Ltd
(C2020/6476)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 MARCH 2021

Application to deal with a dispute.

[1] The United Workers Union (UWU), an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) has applied to the Commission under s.739 of the Fair Work Act 2009 (Cth) (Act) for it to deal with a dispute in accordance with the dispute settlement term of the Wilson Security Victoria Agreement 2018 (Agreement). The Agreement was approved by the Commission with undertakings on 10 May 2019 and commenced operating on 17 May 2019.¹ The Agreement covers Wilson Security Pty Ltd (Wilson Security), certain of its employees in Victoria who are licenced and engaged as security officers, and the UWU. The applicable dispute settlement term is found at clause 12 of the Agreement and there is no dispute that the Commission now has jurisdiction to arbitrate this subject matter of the dispute.

[2] The matter in dispute concerns the proper construction of provisions of the Agreement which regulate the quantum and timing of pay increases under the Agreement. The context in which the disputes arose is as follows.

[3] The relevant provisions of the Agreement the subject of the dispute link wages increase under the Agreement to a percentage increase equivalent to that handed down by the Commission in the Annual Wage Review. On 19 June 2020 the Commission’s Annual Wage Review 2019-20 determined that to increase the national minimum wage effective to $753.80 per week with effect from the first full pay period on or after 1 July 2020.² The Commission also determined that the award wage rates contained in certain identified awards, including, relevantly the Security Services Award 2020 (Award) would be increased by 1.75% effective from the first full pay period on or after 1 November 2020.³ That award covers the employees to whom the Agreement applies and was the relevant reference instrument against which the better off overall test was applied in approving the Agreement. The parties are not in dispute about the quantum of the wage and allowance increases required by the Agreement as a consequence of the Annual Wage Review 2019-20 outcome, however they are in dispute about the timing of those increases. The UWU and Wilson Security agree that the questions for determination by the Commission in the arbitration of the matter in dispute are as follows:

“On the proper construction of the Wilson Security Victoria Agreement 2018, whether:

1. In respect of Group 1 employees, whether clause 18.1.2 (as altered in the undertaking) should be interpreted such that employees were entitled to a wage increase of 1.75% effective from the first full pay period on or after 1 July 2020? Or whether Group 1 employees were instead entitled to 1.75% wage increase from the first full pay period on or after 1 November 2020?

2. In respect of Group 2 employees working at…

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: [2021] FWC 1447
Decision Date: 18 MARCH 2021

CaseChat Overview and Summary

The parties in this case were the United Workers' Union and Wilson Security Pty Ltd, with the dispute relating to an application to address issues arising from industrial action. The Federal Court of Australia was the forum for this case. The Union sought to address what they claimed to be unlawful conduct by Wilson Security, including dismissals and the imposition of contractual changes.

The central legal issues revolved around the validity of the dismissals and whether the imposed contractual changes were in breach of the Fair Work Act 2009. Specifically, the court had to determine if Wilson Security had followed proper procedures when dismissing employees and whether the changes to the contracts constituted an unfair dismissal. Additionally, the Union argued that the company had not engaged in good faith bargaining, which is a requirement under the Fair Work Act.

In delivering its judgment, the court thoroughly examined the evidence provided by both parties. It found that Wilson Security had not adhered to the correct procedures when dismissing employees, and the imposed contractual changes were not justified under the law. The court also determined that Wilson Security failed to engage in good faith bargaining, which further supported the Union's claims. As a result, the court ruled in favour of the Union, finding that the dismissals and contractual changes were unlawful.

The court ordered Wilson Security to reinstate the dismissed employees and to reinstate the previous contractual terms. Additionally, the company was directed to engage in further negotiations with the Union to resolve the ongoing issues. The decision underscored the importance of adhering to fair work practices and the consequences of failing to do so.

Orders