DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wilson Security Pty Ltd
(AG2018/5143)

WILSON SECURITY VICTORIA AGREEMENT 2018

Security services
COMMISSIONER GREGORY	MELBOURNE, 10 MAY 2019

Application for approval of the Wilson Security Victoria Agreement 2018.

[1] An application has been made by Wilson Security Pty Ltd (“Wilson Security”) under s.185 of the Fair Work Act 2009 (“the Act”) for approval of an enterprise agreement known as the Wilson Security Victoria Agreement 2018 (“the Agreement”). It is a single enterprise agreement.

[2] The Agreement is intended to cover employees who are engaged to provide security guarding services within the classifications contained in clause 17, apart from those excluded by sub clause 2.2. It is intended to replace the United Voice and Wilson Security Victoria Safeguard Enterprise Agreement 2014, which has now long since passed its nominal expiry date.

[3] There have been a series of protracted processes leading up to this point. The Notice of Employee Representational Rights was first issued in February 2017 and the Agreement was finally made on 31 August 2018. 1,336 employees were covered by the proposed Agreement at that time, and 992 of those voted in the ballot to approve the Agreement, with 752 voting in favour. United Voice was a Union bargaining representative in the bargaining process. There were no employee bargaining representatives.

[4] The proposed Agreement contains a number of distinct features. These include:

• different wage entitlements depending on when an employee was first employed by the business and/or whether they are working on an existing or a new contract. These arrangements are summarised in Schedule D of the proposed Agreement;

• the provision of a one-off cash bonus payable within one month of the Agreement being approved;

• so-called voluntary overtime arrangements, which provides a different overtime entitlement for employees who opt to participate in the scheme; and

• different entitlements for employees involved in venue and events support duties. These arrangements are set out in Schedule C to the Agreement.

[5] After reviewing the application, the Form F17 Employer’s Statutory Declaration, and the terms and conditions contained in the proposed Agreement, the Commission sought some further clarification and additional information about various matters. United Voice also provided a Form F18 Statutory Declaration. It indicated that the Union wished to be covered by the Agreement, if approved. However, it took issue with various matters in the Employer’s Statutory Declaration. For example:

• it disagreed with the suggestion that Schedule B of the Agreement, which sets out the allowances to apply, conferred terms and conditions that are more beneficial for all employees. It indicated instead that the more generous allowance entitlements apply conditionally, and only benefit those employees who are entitled to receive them;

• it disagreed that Schedule C provided terms and conditions of employment that are more beneficial when compared to those in the underlying Security Services Industry Award 2010; and

• the Declaration did not make reference to the 12 week averaging…

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.

Continue reading Wilson Security Pty Ltd

Details

AGLC: Wilson Security Pty Ltd [2019] FWCA 3250
Case: [2019] FWCA 3250
Decision Date: 10 MAY 2019

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Wilson Security Pty Ltd and its employees. The dispute centred around the approval of the Wilson Security Victoria Agreement 2018. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The nature of the disagreement primarily revolved around the terms and conditions proposed in the agreement, which the employees' representative contested on several grounds.

The legal issues before the Commission included whether the proposed agreement complied with the procedural fairness requirements, and if it adequately covered the essential terms as mandated by the Fair Work Act. Specifically, the Commission had to examine if the agreement provided sufficient protections for employees, such as minimum wages, penalty rates, and other working conditions. Additionally, the Commission assessed whether the agreement was the product of genuine bargaining and whether it met the 'better off overall test', ensuring that employees were not worse off under the new terms.

The Commission found that the agreement was the outcome of genuine bargaining and complied with procedural fairness. It determined that the agreement met the statutory requirements and provided adequate protections for employees, including appropriate wage rates and other conditions. The Commission was satisfied that the agreement would not render employees worse off overall. Consequently, the Commission approved the Wilson Security Victoria Agreement 2018, recognising its compliance with the legislative framework and its potential to foster better industrial relations between the parties.

The final orders included the approval of the Wilson Security Victoria Agreement 2018, effective from the date of the decision. This decision ensures that the agreement will govern the employment terms of the employees involved, subject to the terms and conditions set forth in the approved agreement.

Orders