Wilson Security Pty Ltd

[2013] FWCA 1850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Wilson Security Pty Ltd
(AG2013/421)

WILSON SECURITY - ICHTHYS PROJECT ENTERPRISE AGREEMENT 2013

Northern Territory
DEPUTY PRESIDENT BARTEL	ADELAIDE, 26 MARCH 2013

Wilson Security - Ichthys Project Enterprise Agreement 2013

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

[2] Following a concern identified by the Fair Work Commission (the FWC) in relation to the payment of overtime to part time workers and the better off overall test 1, the employer has provided an undertaking as set out below:

“Part-time employees engaged pursuant to sub-clause 6.3 of the Agreement will attract the applicable overtime penalties prescribed at clause 16 of the Agreement where they work in excess of their defined contracted ordinary hours that were determined at the time of their engagement. This will operate in lieuof the requirement to work in excess of the ordinary hours prescribed at sub-clause 16.1 of the Agreement.”

[3] The undertaking meets the concern identified by the FWC and otherwise complies with the requirements of s.190 of the Act. It will be appended to the Agreement as Appendix 2. In accordance with s.201(3) of the Act, I note that the undertaking is taken to be a term of the Agreement.

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

[5] The Agreement contains a drafting error in clause 3 Term of the Agreement. The nominal expiry date is specified as 22 June 2017, which gives the Agreement a term in excess of the 4 year maximum prescribed in s.186(5)(b) of the Act. At the hearing of the application for approval on 22 March 2013, Mr Reid of EMA Consulting on behalf of the employer, provided documentation and submissions which show that the Agreement voted on by employees contains a nominal expiry date of 14 February 2017.

[6] In accordance with s.586(a) of the Act, clause 3 of the Agreement will be amended by deleting the nominal expiry date of 22 June 2017 and inserting in lieu the date of 14 February 2017.

[7] The Agreement, as amended, is approved. In accordance with s.54(1) of the Act it will operate from 2 April 2013. The nominal expiry date is 14 February 2017.

DEPUTY PRESIDENT

1 Statement of Preliminary Findings dated 5 March 2013.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Wilson Security Pty Ltd, the Federal Court considered the validity of an arbitration clause contained within an enterprise agreement between Wilson Security and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute arose from an incident where a Wilson Security employee, who was a party to the agreement, allegedly assaulted a client of Wilson Security at a worksite related to the Ichthys Project. The CFMEU sought to enforce the enterprise agreement's arbitration clause, which was invoked by Wilson Security to resolve the dispute through arbitration. The court was tasked with determining whether the arbitration clause was valid and whether it applied to the dispute.

The central legal issues before the court were whether the arbitration clause in the enterprise agreement was valid, and if it was, whether it applied to the dispute in question. The court had to consider whether the arbitration clause complied with the requirements of the Fair Work Act 2009 (Cth) and whether it was properly incorporated into the employment contract between Wilson Security and the employee. Furthermore, the court examined whether the dispute fell within the scope of the arbitration clause.

The court found that the arbitration clause in the enterprise agreement was valid and applied to the dispute. The court determined that the clause complied with the statutory requirements and was properly incorporated into the employment contract. The court held that the dispute between Wilson Security and the employee regarding the assault incident was within the scope of the arbitration clause. The court emphasised that the clause covered any dispute "arising out of or in connection with" the employment, which encompassed the incident in question. Consequently, the court ordered the dispute to be resolved through arbitration as stipulated in the enterprise agreement.

The final orders of the court mandated that the dispute be referred to arbitration in accordance with the terms of the enterprise agreement. The court directed the parties to proceed with the arbitration process, ensuring that the dispute was resolved by an arbitrator as per the agreement's provisions. The court's decision upheld the enforceability of the arbitration clause, reinforcing its importance in resolving workplace disputes under the framework of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established