Weslo Staff Pty Ltd

[2016] FWC 1367

[2016] FWC 1367

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise Agreement

Weslo Staff Pty Ltd
(AG2015/7213)

COMMISSIONER GREGORY MELBOURNE, 9 MARCH 2016

Application for approval of the Weslo Staff Pty Ltd Enterprise Agreement 2015-2018.

[1] An application has been made for approval of an Enterprise Agreement known as the Weslo Staff Pty Ltd Enterprise Agreement 2015 – 2018 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (“the Act”) by Weslo Staff Pty Ltd T/A Weslo Staff. It is a single enterprise Agreement.

[2] The application indicates that the Agreement is only intended to cover employees who are to be employed on a casual basis. The Agreement also indicates the wage rates specified are inclusive of all allowances, penalties and loadings that would otherwise apply under the terms and conditions contained in the underlying Security Services Industry Award 2010, except for work on public holidays, which is to be paid at double time.

[3] After reviewing the application and the terms and conditions contained in the proposed Agreement the Commission wrote to the Applicant seeking clarification about a range of matters. A copy of this correspondence was also sent to United Voice, who are indicated in the application to be a Union Bargaining Representative for the proposed Agreement. Copies were also provided to three employees nominated in the application as Employee Bargaining Representatives. The matters raised in the Commission’s correspondence dealt with the following matters.

• The signature page in the Agreement does not include the full name, address, and authority of the person who signed the Agreement. The Commission accordingly sought a revised signature page which complied with these requirements.



• The Employer’s Statutory Declaration contained some confusion about the dates on which the Agreement was made, and when it was lodged. The Commission accordingly sought clarity in regard to these issues.



• It was also indicated that the Commission had concerns about satisfaction with the requirements of the “better off overall” test, given the wage rates proposed. It was indicated in response that the Applicant might possibly consider providing undertakings in response to these concerns.

[4] On 12 February the Commission received three further documents from the Applicant. These were –

• a revised signature page which was signed by two individuals, being one of the Applicant’s Directors and its Field Operations Manager;



• a revised Form F17 – Employer’s Statutory Declaration; and



• a series of proposed undertakings. These included proposed minimum and maximum shift engagements, a proposal to provide for the Award overtime penalties to apply after 38 hours are worked in any week, and various roster proposals.

[5] The Commission was then advised by United Voice that it objected to the application and wished to be heard in regard to the matter. A written submission was subsequently received from the Union on 16 February 2016. A copy of that submission was also provided to the Applicant.

[6] On 18 February the Commission advised the Applicant and the bargaining representatives that, in its view, the proposed undertakings failed to address the concerns raised about compliance with the requirements of the “better off overall test,” and further details would be provided shortly about listing the application to enable further submissions and evidence to be provided. A Notice of Listing was subsequently sent to the Applicant and the bargaining representatives on 19 February indicating the application was listed for hearing and “the purpose of this hearing is to enable further submissions and evidence to be provided.” 1 The hearing was conducted by means of video link with the Applicants appearing from South Australia.

[7] The Commission indicated at the outset in those proceedings that after reviewing the terms of the proposed Agreement and the undertakings subsequently provided it continued to have concerns about whether the requirements of the “better off overall test” could be satisfied, given the proposed rates of pay, and the fact that no additional penalty rates were proposed for work performed in the evenings or at weekends. This situation can be contrasted with the terms and conditions contained in the underlying Security Services Industry Award 2010, which provides for various additional penalty rates for work at these times. The Commission also indicated that it sought clarification about the proposed differences in rates of pay at each grade for what are described in clause 11.1 of the proposed Agreement as the “Weslo Elite – Leadership Group” and the “Weslo Gold” categories.

[8] It was also indicated that despite a revised signature page having been provided the Agreement had still not been signed by an employee representative.

[9] The Applicant was represented in the hearing by two of its directors, Mr Robert Lott, and Mr Robbie Robertson, together with Mr Christian Whamond, who was indicated to now be in the capacity of a consultant to the business. Two employee representatives also appeared, Mr Scott Richmond and Mr Patrick Wardle.

[10] Mr Lott indicated on behalf of the Applicant that the business, which is located in South Australia, was operating in a very competitive environment, particularly because a number of its competitors were not complying with the terms and conditions contained in the Security Services Industry Award 2010. This made it very difficult to submit competitive tenders and to retain on-going contracts. It was also submitted that the proposed Agreement provided terms and conditions that were some of the most favourable in South Australia for employees working in the security industry. He also indicated that the proposed Agreement was based on the terms and conditions contained in another Agreement which had previously been approved by the Commission. It was submitted in conclusion that the Agreement should be approved because it provided appropriate terms and conditions for the employees and would, at the same time, enable the business to remain competitive.

[11] It was also indicated by way of clarification that the higher wage rates in the Agreement were generally paid to its long-standing casual employees, with the lower rates paid to other casual employees. It was also confirmed that the revised signature page was signed by a Director of the business, and by the Field Operations Manager, but did not contain the signature of an employee representative.

[12] The written submissions provided by Mr Simon Blewett from United Voice set out the casual wage rates contained in the Security Services Industry Award 2010 for work performed at different times during the day and night and on different days of the week, and compared them to the rates contained in the proposed Agreement. Its submission continued to indicate:

“As the above tables show, the Agreement rate at levels 1 and 2 is slightly above the ordinary time casual rate under the Award for the equivalent classifications. But the Agreement rate is substantially below the casual rate under the Award for work outside the span of ordinary hours - for night work, Saturday work, Sunday work and public holiday work.” 2

[13] It continues to submit that many employees who would be employed under the proposed Agreement would be required to work outside the normal daily span of hours and therefore would be entitled to significantly higher rates under the terms of the Award, compared to the terms and conditions contained in the proposed Agreement. United Voice also notes there are various allowances provided for under the Award, which are not contained in the Agreement. It also submits that there are no offsetting benefits under the Agreement which would make up for these deficiencies. The Union submits in conclusion that the Agreement should not be approved.

Consideration

[14] I have some understanding and some sympathy from my dealings with the security industry for the circumstances referred to in the Applicant’s submissions. Whilst I am not privy to the particular circumstances that exist in South Australia, where the Applicant’s business is located, the security industry appears, unfortunately, to be impacted by the existence of some businesses providing security services who have little regard for their legal obligations when it comes to the terms and conditions of employment of their employees.

[15] It is also apparent that a number of businesses in the industry enter into contracts for the supply of security services, but then enter into further sub contract arrangements for the supply of labour to service those contracts. It appears, in turn, that these subcontractors are often the same businesses who have little regard for their legal obligations when it comes to employment conditions.

[16] These circumstances obviously make it very difficult for those businesses who are trying to maintain a competitive position in the industry, but are also seeking to “do the right thing” by their employees in terms of the applicable terms and conditions of employment, which are ultimately underpinned by the Security Services Industry Award 2010.

[17] However, regardless of these considerations in dealing with an application for approval of an enterprise agreement s.186(2) of the Act requires that “the agreement passes the better off overall test.” Section 193 continues to state:

“(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.” 3

[18] The proposed Agreement in this matter is different from the underlying Security Services Industry Award 2010 in a number of significant respects. This situation exists despite the response provided in the Employer’s Statutory Declaration at paragraph 3.5, which indicates that the Agreement does not contain any terms than that are less beneficial than the equivalent terms and conditions contained in the Award. As indicated already the particular concern in terms of satisfaction with the requirements of the “better off overall test” centres on the proposed wage rates contained in sub clause 11.1 of the proposed Agreement.

[19] As indicated already two sets of rates are proposed at each Grade, although in three of the classification levels the rate is the same. The Applicant indicated in its submissions that the rate in the first column is paid to its more experienced employees, whereas the rate in the second column is paid to its less experienced employees, or those who are engaged on a less regular basis. The respective rates are as follows:

“Staff Level	Weslo Elite – Leadership Group	Weslo Gold
GRADE 1 – SECURITY OFFICER	$25.75	$24. 80
Grade 2 – Covert Security	$25.75	$25.75
Grade 3 – Security Supervisor	$29.81	$27.04
Grade 4 – Major Event Supervisor	$29.81	$29.81
Grade 5 – Staff Manager	$31.30	$31.30” 4

[20] The Agreement continues to indicate at clause 11 that these wage rates are “composite hourly rates of pay” which “means that the wage rates outlined below are inclusive of all allowances, penalties and loadings, and are payable for all hours worked, except where otherwise expressly stated.” 5 The only other reference in the Agreement to different rates being applicable is in sub clause 11.3 where it is indicated that on gazetted public holidays “a rate of double the nominal rate will be paid.”6 The undertaking that was subsequently provided by the Applicant also proposes that “Casual employees must work a minimum of 38 hours per week before any Award Overtime penalties apply.”7

[21] The rates set out above that are contained in the Agreement are generally between 2% and 15% above the rates contained in the Security Services Industry Award 2010, although at the Grade 1 and 2 levels, where the Applicant’s submissions indicate most employees are classified, the difference between the Agreement and Award rates is only between 2 and 3 per cent.

[22] However, the rates are significantly less than the casual rates of pay contained in the Award for work performed in the evenings and on Saturday and Sunday. Those hourly Award rates for casual employees are as follows:

For work performed between 6 p.m. and 6 a.m. – Monday to Friday

Grade 1 – $28.48

Grade 2 – $29.30

Grade 3 – $29.78

Grade 4 – $30.29

Grade 5 – $31.27

(It should also be noted that a higher penalty rate also applies in the Award for employees who are permanently rostered to work in the evenings.)

For work performed on Saturday

Grade 1 – $33.98

Grade 2 – $34.95

Grade 3 – $35.53

Grade 4 – $36.13

Grade 5 – $37.31

For work performed on Sunday

Grade 1 – $43.69

Grade 2 – $44.94

Grade 3 – $45.69

Grade 4 – $46.46

Grade 5 – $47.97

[23] These rates demonstrate the extent of the difference between the rates contained in the proposed Agreement and those in the Award for work performed in the evenings and at weekends. The Applicant did indicate in its submissions that many of its employees are rostered to work primarily across Monday to Friday and during daytime hours. However, it also indicated that some employees will only be rostered to work at the weekends or in the evening.

[24] It is also noted that the undertaking proposed by the Applicant contains a further explanation of what is meant by “Ordinary hours.” It continues to indicate in this context that “The majority of work for these engagements is after hours and casual in nature.” 8

[25] These comparisons and the circumstances referred to indicate that it is not possible to conclude that each of the employees to be covered by the proposed Agreement would be “better off overall” when compared to the terms and conditions contained in the Security Services Industry Award 2010. It follows, in conclusion, that I am not satisfied that the Agreement can be approved because its terms and conditions do not satisfy the requirements of the “better off overall test.”

[26] Having come to this conclusion I have also given consideration to whether further undertakings could be sought from the Applicant in an endeavour to deal with these deficiencies. However, I am satisfied that any such undertakings would involve changes that would represent an outcome that is significantly different from what was in contemplation by the parties when the Agreement was made, and subsequently voted on. Therefore, I do not consider it is appropriate in these circumstances to explore the possibility of obtaining further undertakings from the Applicant.

[27] As indicated, I am not satisfied, in conclusion, that the terms and conditions contained in the proposed Agreement satisfy the requirements of the “better off overall test.” The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr Robert Lott and Mr Robbie Robertson appeared on behalf of the Applicant along with Mr Christian Whamond who is a Consultant to the business.

Mr Scott Richmond and Mr Patrick Wardle appeared as employee representatives.

Hearing details:

2016.

Melbourne and Adelaide (by video):

2 March.

Final written submissions:

Written submissions of United Voice were received on 16 February 2016.

 1   Notice of Listing issued 19 February 2016

 2   Submissions of United Voice dated 16 February 2016 at para 7

 3   Fair Work Act 2009 (Cth)at s.193(1)

 4   Proposed Weslo Staff Pty Ltd Enterprise Agreement 2015 - 2018 at clause 11.1

 5   Ibid at clause 11

 6   Ibid at clause 11.3

 7   Proposed Undertaking received by email from Alicia Baverstock to the Fair Work Commission on 12 February 2016 at attachment EA 2

 8   Ibid

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