Wilson Security Pty Ltd

[2014] FWCA 2386

[2014] FWCA 2386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wilson Security Pty Ltd
(AG2014/3335)

WILSON SECURITY (NAURU) ENTERPRISE AGREEMENT 2013

Security services
COMMISSIONER GREGORY	MELBOURNE, 10 APRIL 2014

Application for approval of the Wilson Security (Nauru) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Wilson Security (Nauru) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Wilson Security Pty Ltd. The agreement is a single-enterprise agreement.

[2] On reviewing the application the Commission sought further clarification from the Applicant about two matters. Firstly, the application did not contain a copy of the Notice of Employee Representational Rights provided to the employees. Secondly, the Commission sought further information from the Applicant to enable it to determine whether the “better off overall” test requirements are satisfied. The Commission also indicated the matter would be set down for hearing if the parties agreed this was the best means of enabling the matter to be progressed.

[3] However, the Applicant’s representative then indicated it wanted to file further submissions on behalf of the Applicant in response to the various matters raised by the Commission. It indicated this response would be provided within 7 days. It subsequently provided a further written submission, together with an affidavit from Ms Lara Donnini, the Applicant’s National Human Resources Manager.

[4] Those submissions indicate, firstly, the Notice of Employee Representational Rights in an appropriate form was provided to the employees to be covered by the Agreement in accordance with the requirements of the Act. This was confirmed in the affidavit provided by Ms. Donnini who indicated the notice was emailed to each employee. However, a copy of the notice was inadvertently omitted from the application when it was submitted to the Commission. Ms Donnini’s affidavit also attached a copy of the notice.

[5] The Applicant’s further submissions also made reference to a number of matters in regard to satisfying the “better off overall” test. Firstly, it notes the proposed Agreement provides a specific hourly rate which is one percent higher than the applicable rate contained in the underlying Security Services Industry Award 2010. It also notes the provisions of clause 14.2 in the Agreement, which provide that the minimum rate under the Agreement is always required to one percent above whatever the applicable award rate is from time to time.

[6] Secondly, the submission notes that most of the allowances and penalty rates provided in the underlying Security Services Industry Award 2010 are replicated in the proposed Agreement. In addition, those which are not specifically provided for are still intended to be provided to the employees by virtue of clause 15 of the proposed Agreement, which provides:

“The employer shall pay each employee an all up rolled up total hourly pay rate including an allowance for meals and living away from home. That all up rolled up total hourly pay rate, when calculated over any 6 month period of the employee’s employment, shall in total over that six month period be of an amount which is always of a greater monetary sum than that which the employee would have received if they were paid under the Award (including all Award wages, penalties, allowances and any other monetary benefits in the Award).”

[7] The Applicant also makes reference to the provisions contained in clause 21 of the proposed Agreement in this context which state:

“The Employee’s all up rolled up total hourly pay rate to be paid by the employer includes the penalty rate payments and overtime payments which would otherwise have applied under the Award. Provided however that employees must be paid in accordance with clause 15 of this Agreement.”

[8] The Applicant continues to submit that given these provisions:

“...the Commission can be satisfied that there is no circumstance in which an Employee could fail to be better off overall under the Enterprise Agreement than under the award.” 1

[9] The affidavit of Ms Donnini also indicates that the employees will be paid significantly in excess of the Award rates under the Agreement. It also notes that clause 15 of the proposed Agreement provides that all allowances and penalties required to be paid to employees under the Security Services Industry Award 2010 are also required to be paid under the Agreement by virtue of the provisions of clause 15. This includes the annual leave loading obligation. In this context her affidavit continues to indicate:

“For the avoidance of doubt, Wilson Security undertakes that in calculating the total rolled up hourly rate as required by clause 15, will also include in that calculation, the amount of the annual leave loading allowance which an employee is entitled to receive under the Award.” 2

[10] I have also had the benefit of reviewing the additional information contained in the additional explanatory document provided by the Applicant in conjunction with its application, which provides further explanation about the intent of provisions in the Agreement.

[11] In conclusion, having reviewed the terms of the proposed Agreement and the additional submissions provided by the Applicant, including the affidavit of Ms Donnini, I am satisfied that the requirements of the “better off overall” test have been met. In this context I refer, in particular, to the rates proposed to be provided to the employees, and the provisions contained in clauses 15 and 21 of the Agreement, and the obligations they commit the Applicant to.

[12] I am also satisfied that the obligations concerning the provision of the Notice of Employee Representational Rights to the employees proposed to be covered by the Agreement have been satisfied. I am also satisfied that each of the remaining requirements of ss.186, 187 and 188 have been met.

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

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2014. The nominal expiry date of the Agreement is 16 April 2017.

COMMISSIONER

 1   Submissions of Wilson Security dated 26 February 2014 at page 3

 2   Statutory Declaration of Lara Donnini dated 26 February 2014 at para 8

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