[2013] FWC 5858

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Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

The Andrew Crawford Group Pty Ltd T/A Crawford Security & Investigations



Application for approval of The Andrew Crawford Group Pty Ltd Enterprise Agreement 2013 - application refused.

[1] On 25 June 2013 the Andrew Crawford Group Pty Ltd T/A Crawford Security and Investigations (Crawford), lodged an application for approval of The Andrew Crawford Group Pty Ltd Enterprise Agreement 2013 (the Agreement).

[2] The application did not identify any employee bargaining representatives and subsequent proceedings did not involve any employee representation.

[3] The Agreement is to apply to employees who work as static guards, crowd controllers or "cash in transit escorts". It has a nominal expiry date of four years after the date of approval.

[4] On 5 July 2013 I convened a telephone conference at which I sought advice about the process followed to reach the Agreement and expressed concern that I did not consider that the Agreement met the requirements of the "better off overall test" (BOOT). The employer, represented by Ms Jenkin, of counsel, participated in this conference and undertook to provide additional information relative to a comparison of the Agreement and relevant modern award rates.

[5] This additional information was provided on 11 July 2013. It addressed the concerns I had relative to the agreement making process and the BOOT, with the exception of the crowd controller classification. The employer’s response 1 stated:

[6] The employer’s response listed three other agreements with application to security industry employers and asserted that:

[7] On 26 July 2013 I convened a further conference at which I confirmed my concern over the crowd controller wage rates and reiterated my invitation for the provision of an undertaking which established wage rates for that classification commensurate with the Security Services Industry Award 2010 wage rates.

[8] Crawford responded on 2 August 2013 with a submission which requested the approval of the Agreement under s.189 of the FW Act on the basis that the only impediment to approval of the Agreement was the BOOT and that exceptional circumstances existed so as to warrant its approval. In this respect, Crawford identified four security industry agreements which it asserted, operated similarly to this agreement and had been approved by the Commission or its predecessor.

[9] In this further submission, 3 Crawford advised:

[10] Crawford agreed that, if the pro-offered undertaking was accepted, crowd controller rates under the Agreement would exceed the Award rates for work done on Monday to Saturday inclusive but would continue to be less than the Award rates for work done on Sundays and public holidays. In terms of Sundays, the agreement provides for an hourly rate $7.31 lower than the current Award rate, and, for public holidays, $14.64 lower than the Award.

[11] The Crawford submission detailed wage arrangements in these four other security industry agreements and advised that these businesses represented direct competitors. The submissions 4 stated:

[12] The application was the subject of a further conference on 8 August 2013 and a hearing on 13 August 2013. At this hearing Crawford provided a statutory declaration made out by Mr Crawford, in which he confirmed four of his direct competitors had agreements that enabled them to charge lower rates to customers than he could do under the Security Services Industry Award 2010. Mr Crawford attached documentary evidence supporting his assertions in this regard and advised that at least two of his customers had confirmed that his Sunday and public holiday rates were not competitive.

[13] Crawford did acknowledge that other, smaller competitors currently operated in this sector of the industry and that other businesses may do so in the future.

[14] The Sunday and public holiday rates paid by the four nominated competitors under their respective agreements represented hourly rates of between $27 and $28. The relevant Security Services industry Award rates are $38.31 and $45.64, for the Sundays and public holidays respectively.

[15] Crawford confirmed that employment as a crowd controller was generally arranged on a casual basis and that the majority of crowd control work occurred on Thursdays to Sundays inclusive.

[16] Crawford reiterated that it sought approval of the agreement pursuant to s.189 on the basis that the disparate approach to agreement approvals relative to crowd control classifications in South Australia represented an exceptional circumstance. Secondly, Crawford asserted that the exceptional circumstance was that the effect of agreement approvals relative to this type of work in South Australia was such that it created a commercial disadvantage, that the requirement in s.577 of the FW Act that the Commission perform its functions in a manner which is fair and just requires consistency in decision-making and hence supports the approval of the Agreement. Further, Crawford asserted that there was minimal chance of the approval of the Agreement giving rise to a broader avoidance of award provisions in that any new company would need to show that it was inhibited from effectively competing with these nominated businesses. In terms of the existing agreements, Crawford argued that there was no obligation for those agreements to be renewed once they had achieved their nominal expiry dates and hence they could have continued operation with lower rates of pay. In response to my concern that, if approved, the Agreement could give Crawford a competitive advantage outside of South Australia, Crawford have provided an undertaking which confirms that it will only cover those crowd controllers when they are engaged to perform that work in South Australia. Crawford asserted that, pursuant to s.189(4), if the agreement was approved, the Commission should specify a nominal expiry date of two years after the date of approval.


[17] I am satisfied that the application is properly made pursuant to ss.185 and 186 with the exception that, with regard to employees engaged as crowd controllers, I am not satisfied that it meets the requirements of the BOOT. Notwithstanding that Crawford now agrees with this assessment, it is appropriate that I detail the basis upon which I have reached that conclusion. The BOOT requires that, with respect to Crowd Controllers I must conclude that those employees would be better off under the Agreement. In considering the application of the BOOT to the Crowd Controller classification, I have taken into account the advice provided to me to the effect that this work is generally undertaken on a casual basis. The Employer’s Declaration (Form F17) confirms that 22 of the 24 employees covered by the Agreement are casual employees. Crowd Controller work done under the Agreement on Sundays and public holidays is paid at a substantially lower rate than that prescribed by the Award and there is no provision of the Agreement that then ensures that other agreement benefits satisfactorily compensate employees for this shortfall. Even if I assumed that the same employee was engaged to undertake work on weekdays as well as Sundays, approximately the same number of daytime weekday hours would need to be worked to compensate that employee for the shortfall applicable on a Sunday. No advice or undertaking has been provided so as to give me any confidence that this situation will apply. Instead, the evidence confirms that employees under the agreement, who are required to work on Sundays and public holidays will be disadvantaged relative to overall award provisions.

[18] Consequently, because I am not satisfied that the Agreement meets the BOOT requirements, the positive obligation on the Commission to approve the Agreement does not apply.

[19] Section 189 of the FW Act states:

[20] I am satisfied that this section enables consideration of the approval application on the basis that the only reason that the Agreement is not required to be approved relates to the BOOT.

[21] This section was considered by Bartel DP in Top End Consulting Pty Ltd 5 and Asbury C in Agnew Pty Ltd.6 In that latter matter the Commissioner (as she then was) stated:

[22] I think that approach represents the appropriate application of this section.

[23] I have considered whether the fact that the FWC has approved agreements which apply to competitors of Crawford and include wage provisions for crowd controllers which are less than the current award minimums represents an exceptional circumstance for the purposes of s.189(2). In terms of the four agreements to which I have been referred I note that one was approved during the Bridging period and the other three at different test times. Information which may have been provided to the Tribunal members considering those applications is not available to me.

[24] The FW Act requires every member of the FWC to reach conclusions about the BOOT at the relevant test time. Those conclusions will generally take into account each Commission member’s assessment of the information provided by the parties and the circumstances then applicable. Industry is, in my view, entitled to expect a significant degree of consistency, but there will be occasions when there are disparate conclusions relative to similar facts. Traditional hearing and appeal mechanisms are of only limited value in addressing disparate agreement findings in that, generally, the primary focus of the applicant is on achieving approval of an agreement and there is often no party agitating for an alternative position

[25] As a consequence, differences in conclusions about the operation of the BOOT can regularly be identified. Hence, I do not think that there is anything particularly remarkable about differential assessments about the BOOT in a particular industry. Indeed, the nature of the differential test time for the BOOT invites this. Accordingly, there are often circumstances which arise whereby an agreement wage rate falls short of the relevant award provisions at another, later, time.

[26] Secondly, Crawford argues that the circumstances are not simply exceptional in terms of the differential application of the BOOT, but are exceptional in that this has created a situation where Crawford alleges it is now competing on a commercially unsustainable basis with other firms which are able to pay employees below award rates and Crawford is accordingly disadvantaged.

[27] I am unable to regard the situation as exceptional for the purposes of s.189. The reality is that in many circumstances differing agreement provisions impact on competitive situations. If nothing else, this reinforces the importance which the FWC should attach to a consistent application of the BOOT in that, as a general statement, agreement approval decisions or refusals often have a significant commercial impact.

[28] What Crawford seek here is that an agreed and acknowledged BOOT deficiency should effectively be sanctioned on the basis that considerations of commercial equity should be applied. The effect of that would be to sanction the payment of rates of pay less than those provided for under the relevant modern award and, using the same logic, provide a precedent for this to be generally accepted in this sector of the security industry.

[29] Before finalising a conclusion in this respect I have considered the Crawford submission to the effect that, if it is unable to engage Crowd Controllers on reduced payments, so as to match the lower rates paid by its competitors, it is unlikely to win work in this area and hence its employees are more likely to transfer so as to work for businesses which already have agreements which sanction the below award wage rates. That may well be a logical proposition, but I am not satisfied that it meets the requirements of s.189(2).

[30] This section requires that I be satisfied that the approval of the Agreement would not be contrary to the public interest.

[31] Section 134(1) sets out the modern award objective in the following terms:

[32] Consequently, if s.189(2) is applied so as to deliberately sanction an undermining of a modern award provision to facilitate commercial competition, it seems to me that approach is inconsistent with the function and objective of the modern award and must therefore be contrary to the public interest.

[33] In reaching this conclusion I have also taken into account that if the Agreement is approved on the basis sought, it may form the foundation for other similar arguments by businesses seeking to remain competitive in this sector so as to substantially usurp the function of the modern award to set minimum employment conditions.


[34] For the reasons I have set out in this decision, and notwithstanding the undertakings proposed by the employer, I am not satisfied that the Agreement meets the requirements of the BOOT. Further, I am not satisfied that the Agreement, in the circumstances which currently prevail, should be approved pursuant to s.189. Accordingly, the application must be refused.



E Jenkin counsel for the Applicant.

Hearing details:



August 13.

 1   Employer response 11 July 2013, para 13

 2   Ibid, paras 15 and 16

 3   Employer response 2 August 2013, para 9

 4   Ibid, paras 16 - 19

 5   [2010] FWA 6442

 6   [2012] FWA 10861

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