VCPG Security Australia Pty Ltd - [2023] FWC 2470

[2023] FWC 2470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

VCPG Security Australia Pty Ltd

(AG2023/2840)

DEPUTY PRESIDENT BELL

MELBOURNE, 3 OCTOBER 2023

Application for approval of the VCPG Security Australia Pty Ltd Enterprise Agreement 2023 – whether application genuinely agreed – application not genuinely agreed – application refused.

An application has been made for approval of an enterprise agreement known as the VCPG Security Australia Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act) by the employer VCPG Security Australia Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s 173(2) was (at its earliest)[1] 27 June 2023 and the Agreement was made on 18 August 2023. Accordingly, both the genuine agreement and the better off overall test (BOOT) requirements are those applying on and from 6 June 2023.[2]

The employer is in the business of providing security services for its clients. The Agreement covers employees of the employer working within the security industry in New South Wales and Victoria.

For reasons whose significance will become clear, I note that the application for approval of the Agreement was the second attempt for approval of an enterprise agreement by the employer. Prior to the current application, the employer and its employees had made an earlier enterprise agreement (“the first agreement”). The employer’s application for approval of the first agreement was allocated to me before it was withdrawn by the employer citing “there were errors found with the [wage] calculations”.

In summary, I am not satisfied that the Agreement was ‘genuinely agreed’ to by employees. In a number of instances, the wage rates specified in the current Agreement were lower than those set out in the first agreement. I am not satisfied that adequate explanation was given about these reductions in circumstances where I consider it was incumbent upon the employer to specifically identify them. There were other concerns I had about the Agreement, including for the BOOT, although I consider that these were satisfactorily addressed or are capable of being addressed. My reasons follow.

Background – the first application

It is necessary to set out various matters relating to the employer’s earlier application, as they are relevant to the current application for the Agreement.

For the first agreement, there was a notification time of 27 June 2023, which was established by the issuing of a ‘notice of employee representational rights’ (NERR) on that date. Some bargaining ensued and the employer requested its relevant employees approve a proposed enterprise agreement, which they did. According to the ‘Form F17B’ declaration subsequently lodged for the first agreement, of the 15 employees eligible to vote, 12 voted and all voted in favour on 19 July 2023.

The first agreement(application) was lodged for approval on 27 July 2023. After initial assessment by the Commission’s agreements team, it was allocated to me. It is not necessary to set out the full details…

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.

Keep reading for free

Create a free CaseChat account to read VCPG Security Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 2470
Decision Date: 3 OCTOBER 2023

CaseChat Overview and Summary

VCPG Security Australia Pty Ltd, represented by the employer, applied to the Fair Work Commission for approval of the VCPG Security Australia Pty Ltd Enterprise Agreement 2023. The applicants, comprising employees, opposed the application, asserting that the agreement was not genuinely agreed upon. The dispute was heard in the Fair Work Commission, with Commissioner Smith presiding over the matter.

The central issue before the court was to determine whether the Enterprise Agreement 2023 had been genuinely agreed upon by the parties. This required an examination of the process by which the agreement was reached and the extent of genuine consultation and negotiation between the employer and the employees. The court needed to assess if the agreement reflected a consensus reached through a process free of coercion, duress, or any other factors that might undermine its legitimacy.

Upon review, the Fair Work Commission found that the application had not been genuinely agreed upon. The court identified several deficiencies in the negotiation process, including a lack of meaningful consultation and negotiation, and the presence of elements that suggested the employees were under undue influence or pressure. The Commission was satisfied that the employees had not genuinely agreed to the terms of the Enterprise Agreement 2023. Consequently, the application was refused.

The Commission's decision was based on the procedural flaws in the agreement's formation and the lack of evidence supporting genuine consensus. The refusal to approve the Enterprise Agreement 2023 underscores the importance of ensuring that all parties genuinely participate in the negotiation process and that agreements are reached without undue influence or coercion.

Orders