Wilson Security Pty Ltd

[2019] FWCA 3250

[2019] FWCA 3250

FAIR WORK COMMISSION

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 of penalty rate arrangements for employees commencing prior to 1 June 2018. United Voice submits these provide entitlements that are less beneficial to those in the underlying Award.

[6] Wilson Security initially responded to the issues raised by the Commission by proposing a series of undertakings. These included an undertaking that it would no longer seek to rely on the arrangements contained in “Schedule C: Venue and Events (Victoria) Arrangements,” and the terms and conditions otherwise contained in the Agreement would instead apply to employees carrying out this work.

[7] After a series of further exchanges regarding various outstanding matters the Commission decided it was appropriate for the application to be set down for hearing to enable further submissions and evidence to be provided. The hearing was scheduled for 5 March 2019, and the Commission was provided in advance of the proceedings with the benefit of a written outline of submission from United Voice. It made reference to a number of matters but essentially concluded that there were three outstanding issues that required further consideration. They concerned:

•  the provisions in clause 6 of the Agreement, which allow an employee to be suspended without pay for up to 3 rostered shifts in circumstances where claims of alleged misconduct or neglect of duty are made against an employee;

•  the averaging of hours arrangements in clause 7, which enable averaging over a period of up to 12 weeks, whereas the underlying Award provides for averaging of hours over a maximum of 8 weeks; and

•  the voluntary overtime arrangements in clause 23.

[8] However, at the commencement of the proceedings on 5 March Wilson Security requested that the matter be adjourned into conference to enable further discussion, and to explore whether any further agreement was able to be reached. United Voice did not oppose this request.

[9] Wilson Security subsequently indicated at the conclusion of the conference that it was now prepared to provide an undertaking that the averaging of hours provisions will apply in the same way as those set out in the Security Services Industry Award 2010. It also foreshadowed an amendment to a previous undertaking it had proposed in regard to the stand down and suspension of pay arrangements. These proposals responded to some of the concerns raised by United Voice, but did not deal with those concerns in their entirety. Wilson Security also indicated that it would provide further written submissions in support of the application by Friday, 8 March. United Voice indicated in response that it would then give consideration to whether it would provide further written submissions to support those provided to the Commission previously. The respective submissions of Wilson Security and United Voice can be summarised as follows.

Wilson Security

[10] Wilson Security submits that the voluntary overtime provisions contained in clause 23 of the Agreement should be characterised as a term that provides employees with substantial benefits. To the extent that there are any perceived deficiencies with this scheme when compared to the underlying Security Services Industry Award 2010 those deficiencies should only be regarded as nominal and outweighed by the benefits provided.

[11] It continues to submit that the Agreement operates consistently with the Award to the extent that ordinary hours are capped at an average of 38 per week, and any additional hours are paid at overtime rates. Those penalty rate entitlements are the same as the Award and are, in some circumstances, in excess of the Award entitlements. It refers, in particular, in this context to the provisions contained in sub clause 23.2.2, which relate to those employees employed prior to 1 June 2018. It also submits that these overtime arrangements operate as the default provisions when hours are worked in excess of 38, and the only way in which they can be modified is by a choice or election made by an individual employee.

[12] This mechanism operates by employees electing to opt into the voluntary overtime arrangement which involves them agreeing to a varied rate and process when additional hours in excess of 38 are worked. These rates are higher than the ordinary hourly rate provided for under the Agreement, being a rate of time and a quarter. Wilson Security submits that the following additional benefits also apply to employees who agree to participate in the voluntary overtime arrangement. Firstly, they receive preferential allocation of additional hours in their particular work area. Secondly, they have a greater potential to gain additional earnings as a consequence of this preferential allocation. Thirdly, they are given increased certainty in regard to working hours and working arrangements, given that the voluntary overtime scheme can only apply in circumstances where the employee has been provided with at least 12 hours’ notice of the option of working additional voluntary overtime hours. Where 12 hours’ notice has not been provided then the normal or default overtime rates apply.

[13] Wilson Security also notes that these voluntary overtime arrangements are currently available to employees under the existing Agreement, and the ongoing provision of these entitlements will maintain the status quo. Its assessment of the additional earnings received by employees under the existing voluntary overtime scheme in the period between November 2018 and February 2019 estimated that those employees who participated earned approximately, on average, an additional $140 per week. An estimated 59% of permanent employees opted to participate in the voluntary overtime scheme during this period. In its submission it cannot be assumed that those employees would have earned more under the normal overtime arrangements if the voluntary overtime scheme had not been in place because overtime work would not necessarily have been offered to employees in those circumstances. For example, a range of other arrangements would likely have been put in place, such as an increase in the headcount to avoid additional overtime hours being required.

[14] It continues to submit in the context of the “better off overall” test that the reduced voluntary overtime rate is outweighed by the overall benefits of the scheme. It also refers in this context to an extract from the Explanatory Memorandum that accompanied the original Fair Work Bill 2008, which provided an example of an employee agreeing under the terms of an Individual Flexibility Agreement to give up a financial benefit, being an additional penalty rate, in return for a non-financial benefit, being the ability to leave work early. It notes that the Explanatory Memorandum concluded by indicating, “It is intended that, in appropriate circumstances, such an arrangement would pass the better off overall test.” 1

[15] Wilson Security acknowledges that this example is provided in the context of an
Individual Flexibility Agreement, which takes into account the personal circumstances of the particular employee involved. However, in its submission the arrangements associated with the voluntary overtime scheme are similar in that participation in the scheme can only be triggered by the choice made by an individual employee. In addition, any employee that has chosen to participate is able to opt out of the voluntary scheme at any time. It submits in conclusion, “The inclusion of the Optional VOT in the Agreement should only be regarded by the Commission as a benefit to employees under this Agreement.” 2

[16] It also refers to the following entitlements in the Agreement, and submits that they are more beneficial than those contained in the underlying Security Services Industry Award 2010.

•  The hourly rates for Group 1 employees, or Group 2 and 3 employees at sites where contracts were awarded before 23 July 2015, are 2.19% – 3.04% higher than those contained in the underlying Award.

•  The higher weekend overtime entitlements for Group 1 and 2 employees.

•  The enhanced shift allowances for employees who commenced prior to 1 June 2018 (Group 1 and 2), whereby the shift penalty is paid on all hours worked during the allocated shift, instead of being paid on only those hours which fall within the specified spread of hours for the shift.

•  A productivity allowance of 10 cents per hour to be paid to all Group 3 employees for all hours worked.

•  A one-off sign-on bonus of between $327 – $1200 to be paid to all full, part-time and casual employees.

•  Back payment of the increased wage rates under the Agreement to the date of the close of the ballot period for approval of the Agreement, being 31 August 2018. These back payments will apply to all Group 1, 2 and 3 employees who are entitled to receive the higher wage rates.

[17] Wilson Security acknowledges in its submissions that some previous Commission decisions have not been prepared to approve agreements containing voluntary additional hours arrangements. However, it also submits that each application must be assessed having regard to its particular circumstances, and the relevant terms and conditions contained in the Agreement. It also emphasises that agreements containing voluntary additional hours arrangements have been approved in past decisions. It refers, in particular, in this context to the decision of Deputy President Bull in kikki.K Pty Ltd T/A kikki.K (“kikki.K”) 3 handed down in March 2017. It submits that this decision makes clear that the Commission is required to have regard to whether the Agreement, in totality, satisfies the requirements of the better off overall test, and it does not fail the test simply because it contains a voluntary overtime arrangement.

[18] In addition, in some previous decisions involving voluntary overtime schemes the Commission has been asked to consider arrangements which involve the payment of ordinary time rates of pay for the additional voluntary hours. In some cases those rates were no higher than those contained in the underlying Award. A different situation applies in regard to the present application where the rate of time and a quarter is to be paid when additional voluntary overtime hours are worked. In addition, some previous arrangements did not entitle participating employees to the benefit of the preferential allocation of the additional hours, and this is again a significant benefit for those employees who choose to participate in the scheme. The key consideration, in summary, is not that the employees have chosen to accept a reduced rate of pay but that they are instead to receive the benefits of preferential allocation of additional hours and increased certainty in regard to those hours.

[19] However, after further consideration Wilson Security also proposed a further undertaking in regard to the voluntary overtime arrangements. This acts to place a cap on the number of hours of voluntary overtime that can be worked by any employee in any year during the life of the Agreement. A different cap is proposed to apply in each case to Category or Group 1, 2 and 3 employees. It is intended to operate as follows:

1 September 2018 – 30 June 2019

Category 1 employees – 80 hours per annum

Category 2 employees – 59 hours per annum

Category 3 employees – 27 hours per annum

1 July 2019 – 30 June 2020

Category 1 employees – 70 hours per annum

Category 2 employees – 50 hours per annum

Category 3 employees – 18 hours per annum

1 July 2020 – 30 June 2021

Category 1 employees – 72 hours per annum

Category 2 employees – 51 hours per annum

Category 3 employees – 19 hours per annum

[20] It also provided additional calculations, expressed on a consolidated basis, which it submits support the view that the enhanced financial benefits provided for under the Agreement offset the reduced rates payable when voluntary additional overtime hours are worked.

United Voice

[21] United Voice provided a table in its submissions which set out the differences between the Award overtime entitlements and those proposed under the voluntary overtime arrangements. It continues to submit that it is irrelevant in the context of the better off overall test whether an employee has a choice to opt in to a less beneficial arrangement, and the test is instead to simply consider whether an employee, who is paid voluntary overtime rates when they work overtime, is better off overall than they would be if the Award applied.

[22] It also submits that the assessment should not take account of other perceived benefits which may flow from the voluntary arrangement, such as the ability to plan hours, or to access more additional hours than might otherwise be the case.

[23] It continues to submit that the voluntary overtime arrangements appear likely to disadvantage at least some employees when compared with the underlying Security Services Industry Award 2010, and there do not appear to be other sufficient more beneficial arrangements that offset this potential disadvantage. However, it is also noted that United Voice did not make additional submissions regarding the subsequent undertaking provided by Wilson Security in regard to the voluntary overtime arrangements.

[24] United Voice also submits that the Commission should have regard to the decisions in Mondex Group Pty Ltd, 4 Redlea Citrus Pty Ltd5 and kikki.K in regard to the issues associated with agreements containing voluntary overtime arrangements, which provide a lesser rate of pay than that contained in the underlying Award.

Consideration

[25] Section 186(1) of the Act requires the Commission on application for approval of an enterprise agreement to approve the agreement “if the requirements set out in this section and section 187 are met.” 6 Section 186(2), firstly, requires that the Commission must be satisfied that “the agreement has been genuinely agreed to by the employees covered by the agreement,”7 and, secondly, that “the agreement passes the better off overall test.”8

[26] Section 188 of the Act continues to deal with the circumstances in which employees can be said to have genuinely agreed to an enterprise agreement. It states:

“188 When employees have genuinely agreed to an enterprise agreement

An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if the FWC is satisfied that:

(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:

(i) sub sections 180(2), (3) and (5) (which deal with pre approval steps);

(ii) sub section 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and

(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and

(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.” 9

[27] As indicated, s.186(2)(d) requires that the Commission must be satisfied that the Agreement passes the “better off overall test.” The requirements of the test are dealt with in s.193(1) in the following terms:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(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.” 10

[28] Section 193(6) also provides that the “test time” is the time the application for approval is made under s.185.

[29] It is well established that the application of the “better off overall” test requires the identification of terms and conditions in a proposed Agreement that are more beneficial for the employees, and those which are less beneficial, with an overall assessment then being made about whether the employees would be “better off overall” under the Agreement.

[30] The voluntary overtime arrangements are clearly an important consideration in assessing the Agreement against the requirements of the better off overall test. However, before coming to consider these entitlements it is also noted that the Agreement applies different conditions of employment to different employees, with those entitlements being primarily dependent upon the date on which an employee was first employed by the business. This is again relevant in the context of the better off overall test.

[31] “Existing employees” are defined as any employee who commenced employment with the business prior to 1 June 2018. “New employees” are any employee who commenced employment on or after 1 June 2018. In addition, in terms of wages and allowances the Agreement makes reference to “Group 1 Employees,” “Group 2 Employees,” and “Group 3 Employees.” Group 1 refers to any employee who commenced employment prior to 23 July 2015. Group 2 refers to any employee who commenced employment on and between 23 July 2015 and 31 May 2018. Group 3 refers to any employee who commenced employment on or after 1 June 2018.

[32] The following different entitlements appear to apply to each of these different groups of employees.

•  “Group 1 Employees” – these employees are entitled to the rates of pay contained in Schedule A of the Agreement. These rates are between 48 cents and 72 cents per hour higher than those contained in the underlying Security Services Industry Award 2010. They are also entitled to various allowances referred to in Schedule B of the Agreement, which include a laundry allowance of 61 cents per shift, which is not contained in the underlying Award.

•  “Group 2 Employees” – where these employees are working on a security contract at a site that was awarded prior to 23 July 2015 they are entitled to the same rates of pay as Group 1 employees. However, where Group 2 employees are working at a site on a contract that was awarded after 23 July 2015 they are entitled to the rates of pay contained in the underlying Award.

•  “Group 3 Employees” – where these employees are working on a security contract at a site that was awarded prior to 23 July 2015 they are entitled to the same rates of pay as the Group 1 employees. However, where they are working on a contract that was awarded after 23 July 2015 they are again only entitled to receive the Award rates of pay. However, in those circumstances they are also entitled to the productivity allowance provided for in the Agreement. This is an amount of 10 cents per hour or $3.80 per week for a normal 38 hour working week. The productivity allowance is only payable on hours worked and is not payable when an employee is on leave or attending training.

•  “Existing Employees” – these employees are entitled to receive the laundry allowance of 61 cents per hour. As indicated previously this allowance is not contained in the underlying Award. When engaged on shift work they are also entitled to receive the additional shift rate penalty for all hours worked. (Under the Award the penalty rate entitlement only applies to hours worked within the span of hours classified at shift work.) Existing employees are also entitled to higher penalties for overtime work performed on Saturday and Sunday than those contained in the Award. The rates of pay for casual employees employed prior to 1 June 2018 are also based on those provided to “existing employees.”

•  “New Employees” – these employees are not entitled to the laundry allowance. In addition when engaged in shift work they are only entitled to shift penalties for hours worked within the span of hours classified as shift work. This applies in the same way as the Award entitlement. They are also entitled to the same overtime penalty rates as contained in the Award.

[33] As indicated, the voluntary overtime arrangements are clearly the critical consideration in considering whether the terms and conditions contained in the Agreement satisfy the relevant statutory requirements. Wilson Security and United Voice have both referred to previous Commission decisions which have considered how voluntary overtime arrangements, which do not provide the same overtime penalty rate entitlement as the underlying Award, are to be considered in terms of the better off overall test assessment. In summary, those decisions have made clear that it is not relevant for the purposes of the better off overall test assessment that an employee has volunteered or agreed to work the overtime hours, or that the work would not otherwise have been available to the employee if the Award penalty rates were to apply. The assessment is instead simply based upon a comparison between the terms contained in the Agreement and those in the underlying Award. If the Agreement contains entitlements that are less favourable when compared to those in the Award then there must be other entitlements that offset the loss of those benefits so that ultimately the employees are better off overall under the terms contained in the Agreement.

[34] This was confirmed in the decision of Senior Deputy President Harrison in Mondex Group Pty Ltd 11 when she concluded at [49] (footnotes omitted):

“[49] It is not in issue that the Agreement does not pass the better off overall test. Enterprise agreements containing a clause variously described as a preferred hours clause or additional voluntary hours clause have been addressed in Commission decisions in the past. It is adequate for the purposes of this decision to refer to the Full Bench decision of Re MSA Security Officers Certified Agreement 2003 (MSA Security). Although the consideration there was whether the relevant agreement passed the then no-disadvantage test (NDT), the observations made remain relevant. The decision concerned an appeal against the certification of an agreement which contained a term providing for the parties to agree that extra hours or shifts could be paid at ordinary time rates of pay rather than overtime rates. The Full Bench said that, in applying the NDT, consideration is to be given to a comparison between the enterprise agreement terms and the relevant award terms. The award did not distinguish between hours worked on a voluntary basis or those as directed by an employer. All such hours were to be paid for at the applicable overtime rates. The application of the NDT did not involve an analysis of matters or considerations other than those between the enterprise agreement and the comparable terms and conditions of the award. It was not to the point that if employees had to be paid at overtime rates the employer may not offer them additional hours.”

[35] This decision was cited with approval by Deputy President Asbury in Redlea Citrus Pty Ltd. 12 She continued to state:

“[21] The Shoobridge Agreement appears to be nothing more than a vehicle to implement a voluntary hours provision. The principles relating to voluntary hours are clear and they apply whenever a relevant award or reference instrument for the purpose of the BOOT contains a penalty payment or an additional payment, however described, for work performed in particular circumstances, or at particular times of the day, or on particular days of the week, or on public holidays, or outside hours that are the ordinary working hours for an employee or employees. Quite simply, it is irrelevant for the purposes of the BOOT that an employee has volunteered, chosen or agreed to work hours that would attract a penalty payment, loading, allowance or additional payment under a relevant modern award or reference instrument.

[22] It is equally irrelevant that the employee is working those hours in circumstances where the employer has not “demanded” that the employee work. If the employer obtains the benefit of the hours worked by an employee, and those hours are worked at times when the employee is entitled to be paid at overtime rates under an Award, then the Agreement must contain benefits that offset the loss of overtime payments so that the employee is better off overall under the Agreement. The use of the term “where an employer demands employees to work overtime” in the Shoobridge Agreement, is in my view, an attempt to disguise a voluntary hours provision. The clause potentially removes overtime payments for Full-Time and Part-Time employees under the Agreement and does not contain any offsetting benefit.”

[36] These decisions were again cited with approval by Deputy President Bull in kikki.K. However, it is also noted that the Deputy President concluded that the more beneficial terms in the Agreement outweighed those which might be considered detrimental. He also accepted an undertaking provided by the employer which imposed a limitation on the number of additional overtime hours which might be worked at ordinary time rates. The undertaking effectively capped the number of additional overtime hours that could be worked in any year under this arrangement to a total of 50 hours.

[37] The conduct of the better off overall test assessment is often a difficult exercise. However, it is a particularly difficult task in the present case, given the number of potential variables and uncertainties involved. For example, any assessment ultimately depends on the number of employees who elect to take up the voluntary overtime option, and then how many voluntary overtime hours they work. It will also depend upon how many hours are worked on each such occasion, and what day of the week those hours are worked. These factors will influence whether the voluntary overtime rate of time and a quarter is being compared with a rate of time and a half under the Award or some higher Award entitlement.

[38] The position becomes more complicated when considering the circumstances of the Group 2 and Group 3 category employees. Firstly, any assessment to be made in regard to these employees depends on whether they are working under a security contract secured by Wilson Security at a site prior to 23 July 2015. If so, then they are entitled to the higher wage rates that apply under the terms of the Agreement. If not, then they are only entitled to the Award rates of pay, which are between 2 and 3 percent lower than those contained in the Agreement. However, Group 3 category employees are then entitled to the productivity allowance of 10 cents per hour or $3.80 for an ordinary 38 hour working week.

[39] Some of the other benefits are also conditional. For example, Group 1 employees and some Group 2 employees, depending upon which contract they are assigned to, are entitled to shift and overtime penalty rate entitlements that are greater than those provided for in the Award. However, this benefit is only ever realised if those employees are involved in shift work or are working additional overtime. Group 2 and 3 employees can also be entitled to the back payments provided for under the Agreement, but this is only relevant if they are working at sites where a contract was obtained prior to 23 July 2015.

[40] Despite all of these vagaries and uncertainties I now turn to consider the application of the better off overall test based on what might be described as a worst-case scenario; that being that each of the relevant employees has opted to participate in the voluntary overtime scheme. It is noted at the outset that the operation of these arrangements needs to be considered in conjunction with the undertaking that has now been provided. This acts to limit the number of hours of voluntary overtime that can be worked by any employee in any year during the life of the Agreement. For example, in year one Group 1 employees are limited to approximately one and a half hours of voluntary overtime per week on average. Group 2 employees are limited to just over 1 hour per week on average, while Group 3 employees are limited to just over half an hour of voluntary overtime per week on average. A smaller number of hours is then available in years 2 and 3 of the Agreement. It is also noted that voluntary overtime is not paid at ordinary time rates, but at an amount that effectively represents time and a quarter.

[41] I am satisfied in response that these arrangements satisfy the better off overall test in respect of Group 1 and Group 2 employees. While these employees will generally be receiving a reduced overtime entitlement when performing voluntary overtime, this impact is significantly limited by the cap on voluntary overtime hours that an employee is able to work. It is also noted that the voluntary overtime arrangements in the Agreement appear to provide a better entitlement than the Award for the first two hours of any overtime worked on Saturday, and for overtime work performed on Sunday.

[42] In addition, most of these employees are receiving rates of pay for all hours worked that are between two and three percent higher than those in the Award. They are also entitled to a once-off cash bonus. For a full-time employee this amounts to $1,200.00 or $23.00 dollars per week in a single calendar year. They also have an entitlement to be back paid to the date when the Agreement was made on 31 August last year. Based on the pay rate comparisons between the Award rate and the Agreement rate for a level 1 employee this would appear to entitle the employee to receive an amount of approximately $18.00 per week from August last year until the date that the Agreement comes into operation. In circumstances where these employees were employed prior to June last year they are also entitled to the laundry allowance of 61 cents for each hour worked. This amounts to a total of $23.18 per week for an employee working a standard 38 hour week.

[43] The circumstances involving the Group 3 employees is, however, a little different. While they can be entitled to the same rates of pay as other employees if working on a site that Wilson Security contracted to provide services to prior to 23 July 2015, they are otherwise paid at the Award rates of pay. However, they are entitled to the one-off cash bonus payment set out in clause 19. They are also entitled to the productivity allowance of 10 cents per hour, payable for all hours worked, detailed in sub clause 18.4. This amounts to $3.80 per week for a standard 38 hour week. As indicated previously the one-off cash bonus amounts to approximately $23.00 dollars per week for a full-time employee over a single calendar year. They can also be entitled to receive the back payments provided for under the Agreement, but this again only applies if they are working at a site that Wilson Security contracted to provide services to prior to 23 July 2015.

[44] In addition, the undertaking now provided in regard to voluntary overtime limits the amount of voluntary overtime hours that can be worked by a Group 3 employee to an average of around 30 minutes per week in year 1, and to significantly less than this in the following two calendar years. This is paid at the rate of time and a quarter. This can be contrasted with the decision of Deputy President Bull in kikki.K where he was prepared to accept an undertaking enabling up to 50 hours of voluntary overtime to be worked in any year at the ordinary hourly rate of pay. The terms of the undertaking now provided by Wilson Security also means that no voluntary overtime arrangements can operate after 30 June 2021 in the event that the Agreement continues to operate after its nominal expiry date. It is also noted that the employees receive a rate of time and a quarter when performing voluntary overtime work, and are then entitled to the normal overtime penalty rate arrangements for any overtime work that extends beyond the voluntary arrangement. Again, as noted previously the voluntary overtime arrangements are also more favourable when compared to the Award for some overtime work performed at the weekends. I am satisfied as a consequence that the additional benefits provided under the Agreement, and the strict limitation on the amount of voluntary overtime that can be worked by a Group 3 employee, also means that the better off overall test has been satisfied in regard to these employees.

[45] One final matter also needs to be addressed. Wilson Security has noted that there is a typographical error in sub clause 18.3 of the Agreement when it refers to the date of 1 June 2019 in sub clause 18.3.1. It submits that the correct date should be 1 June 2018, and this intention is clear from other related clauses in the Agreement. It refers in this context to sub clauses 4.5 and 4.9, as well as various references to the date of 1 June 2018 in clauses 20, 21 and 23. It also points to the so-called “Wage Group Explanatory Guide” in Schedule D of the Agreement. It makes clear that Group 3 employees are “Employees employed from 1 June 2018.”

[46] I am satisfied, in response, that it is evidently clear that the reference to 1 June 2019 in sub clause 18.3.1 is a mistake, and the overall context of the Agreement makes clear that the correct date should be 1 June 2018. For example, sub clause 18.2 indicates that Group 2 employees are those who commenced employment between 23 July 2015 and 31 May 2018. It logically follows that Group 3 employees must therefore be those that were employed immediately after this point, being 1 June 2018. The terms of Schedule D also make absolutely clear that the correct date is intended to be 1 June 2018. This is again reinforced by the other sub clauses referenced by Wilson Security and referred to above.

[47] Section 586 of the Act provides as follows:

“586 Correcting and amending applications and documents etc

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.” 13

[48] I am accordingly satisfied that the Commission has the power to amend the terms of the Agreement in order to correct what is obviously a typographical error in clause 18.3.1. The reference to 1 June 2019 in that sub clause is accordingly now corrected to refer instead to 1 June 2018.

Conclusion

[49] As indicated previously the Applicant has also proposed various undertakings. A copy of these consolidated undertakings is attached in Annexure A. I am satisfied that they will not cause financial detriment to any employee to be covered by the Agreement, and that they do not constitute a substantial change to the Agreement. The undertakings are accordingly accepted and will now be taken to be a term of the Agreement.

[50] I am otherwise satisfied that each of the requirements of ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[51] United Voice, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[52] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 May 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

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Annexure A

 1 Further Submissions of Wilson Security Pty Ltd, dated 8 March 2019 at [14].

 2 Ibid at [16].

 3   [2017] FWCA 1848.

 4   [2015] FWC 1148.

 5   [2016] FWC 333.

 6   Fair Work Act 2009 (Cth) s.186(1).

 7   Fair Work Act 2009 (Cth) s.186(2)(a).

 8   Fair Work Act 2009 (Cth) s.186(2)(b).

 9   Fair Work Act 2009 (Cth)s.188.

 10   Fair Work Act 2009 (Cth) s.193.

 11   [2015] FWC 1148.

 12   [2016] FWC 333.

 13   Fair Work Act 2009 (Cth) s.586.