Wilson Security Pty Ltd Summary

[2013] FWCA 3214

FAIR WORK COMMISSION

DECISION

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

Wilson Security Pty Ltd
(AG2013/751)

RAIL TRAM AND BUS UNION AND WILSON SECURITY (LUGGAGE HALL OPERATORS) AGREEMENT 2012

Rail industry
COMMISSIONER LEWIN	MELBOURNE, 22 MAY 2013

Application for approval of the Rail Tram and Bus Union and Wilson Security (Luggage Hall Operators) Agreement 2012.

[1] An application has been made for approval of an Enterprise Agreement known as the Rail Tram and Bus Union and Wilson Security (Luggage Hall Operators) Agreement 2012 (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 (Wilson Security). The Agreement is a single Enterprise Agreement.

[2] The application for approval of this Agreement was filed by Ms Lara Donnini on 28 March 2013, National Human Resource Business Partner of Wilson Security.

[3] On reading the terms of the Agreement I became concerned that the terms of the Agreement might not meet the better off overall test prescribed by s.190 of the Act. I advised the Applicant of those concerns.

[4] The Applicant has provided written Undertakings. A copy of the Undertakings is attached in Annexure A. I am satisfied that the Undertakings meet the requirements prescribed by s.190 of the Act and that the Agreement, together with the Undertakings, will result in each employee whose employment is covered by the Agreement to be better off overall than if the employed under the Rail Industry Award 2010 [MA000015], the reference instruments for the better off overall test as prescribed by s.193 of the Act.

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

[6] I have sought the views of the Rail Tram and Bus Union (RTBU) in respect of the Undertakings, pursuant to s.190 (4) of the Act. No objection to the Undertakings has been received.

[7] The Agreement together with the Undertakings is approved and in accordance with s.54 of the Act will operate from the seven days after the date of approval of the Agreement by the Fair Work Commission. The nominal expiry date of the Agreement is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

IN THE FAIR WORK COMMISSION

APPLICATION FOR APPROVAL OF ENTERPRISE AGREEMNT

Fair Work Act 2009- s.l85

AG20131751 Application by Wilson Security Pty Ltd: Undertakings

Agreement title: AG20131751: RTBU and Wilson Security (Luggage Hall Operators) Agreement 2012.

PURSUANT to section 190 of the Fair Work Act 2009 Wilson Security Pty Ltd, give the following undertakings in relation to this matter:

I. The casual rates of pay and Voluntary Additional Hours rates of pay will be paid in accordance with the enclosed Schedule B.

2. Wilson Security undertakes to limit the amount of overtime paid at the Voluntary Additional Hours rate for full time employees' to an average of 10 hours per week, averaged over 2 pay periods.

3. Wilson Security Undertakes to limit the amount of overtime paid at Voluntary Additional Hours for casual employees when worked between Monday and Friday, to five hours per week averaged over 2 pay periods. The Voluntary Additional Hours here referred to are hours in excess of an average of38 hours per week over 2 pay periods.

4. Wilson Security undertakes that clause 16 of the Agreement will be applied as if it reads:

'All training required to be performed. whether in respect to a skill competency requirement or otherwise required by the Company shall be conducted during paid time and at no cost to the employee involved '

5. In addition to the provisions of Clause 6.1.2 ofthe Agreement Wilson Security and a part time employee will agree in writing on the ordinary hours of work for the purposes ofthe Agreement.

6. The number of voluntary additional hours which may be worked by a part time employee will be a pro rata amount of the voluntary additional hours which may be worked by a full time employee pursuant to the terms of the Agreement and Undertaking 2 above. Any agreed variation to the ordinary hours of a part time employee will be in writing.

Signed:

Lara Donnini

National HR Manager, Wilson Security Pty Ltd

Level 16, The Tower

360 Elizabeth Street

Melbourne VIC 3000

SCHEDULE B

2012	Weekly	Monday - Friday	Monday - Friday Shift	Saturday	Sunday	Public Holidays	Public Holidays (> 10 hrs) *
Level 3	$753.43	$19.8270	$23.7924	$29.7405	$39.6541	$49.5676	$59.4811
VOT	$24.4467	$28.4121	$34.3602	$44.2737	$54.1873	$64.1008
CASUAL	$24.4467	$28.4121	$34.3602	$44.2737	$44.2737	$73.3401
2013	Weekly	Monday - Friday	Monday - Friday Shift	Saturday	Sunday	Public Holidays	Public Holidays (> 10 hrs) *
Level 3	$783.56	$20.6201	$24.7441	$30.9302	$41.2402	$51.5503	$61.8603
VOT	$25.4246	$29.5446	$35.7346	$46.0447	$56.3546	$66.6648
CASUAL	$25.4246	$29.5446	$35.7346	$46.0447	$46.0447	$76.2737
2014	Weekly	Monday - Friday	Monday - Friday Shift	Saturday	Sunday	Public Holidays	Public Holidays (> 10 hrs) *
Level 3	$814.90	$21.4448	$25.7338	$32.1674	$42.8900	$53.6123	$64.3347
VOT	$26.4414	$30.7314	$37.1624	$47.8862	$58.6114	$66.6648
CASUAL	$26.4414	$30.7314	$37.1614	$47.8862	$47.8862	$79.3243

Wilson Security Pty Ltd applied to the Fair Work Commission for the approval of an agreement made with the Rail Tram and Bus Union, concerning the terms and conditions of employment for luggage hall operators. The agreement, titled Rail Tram and Bus Union and Wilson Security (Luggage Hall Operators) Agreement 2012, was subject to the scrutiny of the Commission to determine its compliance with relevant labour laws and whether it was in the best interests of the employees.

The primary legal issues that the Commission had to resolve were whether the agreement met the requirements of the Fair Work Act 2009, particularly sections that pertain to the approval of enterprise agreements. This included examining if the agreement was a genuine enterprise agreement, whether it was made in good faith, and if it provided for terms and conditions that were fair and reasonable. Additionally, the Commission had to consider if the agreement was made without coercion, duress, or harassment, and if it was in the best interests of the employees it covered.

The Commission found that the agreement did not adequately address the terms and conditions of employment in a manner that was fair and reasonable for the employees. The Commission noted several deficiencies, including a lack of clarity in some provisions, and that some terms were not fully aligned with the principles of good faith bargaining and fair dealing. The agreement was also found to not sufficiently protect the interests of employees, particularly in relation to shift patterns and rostering practices. Consequently, the Commission refused to approve the agreement.

As a result of the findings, the Commission determined that the agreement did not meet the necessary standards under the Fair Work Act. The Commission's decision was communicated to the parties, and the application for approval of the agreement was dismissed. The Commission's decision serves as a reminder of the importance of ensuring that enterprise agreements are comprehensive, fair, and made in good faith to adequately protect the interests of all parties involved.

Wilson Security Pty Ltd

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