[2014] FWC 6441
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.242—Low-paid authorisation

United Voice
(B2013/1264)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 SEPTEMBER 2014

Application by United Voice for low-paid authorisation

Introduction

[1] United Voice is an organisation registered under the Fair Work (Registered Organisations) Act 2009. It is, relevantly, entitled to represent the industrial interests of certain employees employed by private security providers performing security services in the Australian Capital Territory. By amended application to the Fair Work Commission (Commission) dated 28 April 2014, United Voice seeks a low-paid authorisation in relation to a proposed multi-enterprise agreement. The proposed multi-enterprise agreement, in relation to which the low-paid authorisation is sought, will cover five security industry employers (Respondent Employers) which operate private security businesses in the ACT and employees of the Respondent Employers performing security services work in those businesses that is described and classified in Schedule C – Classifications of the Security Services Industry Award 2010 (Security Award). Two of the Respondent Employers are related entities, and for convenience are referred to in this decision collectively as Secom Security.

[2] The form of the low-paid authorisation sought by United Voice is in the following terms:

. . . in relation to those employees performing that work in the Australian Capital Territory where that work is subject to contracts between the employers listed in Appendix ‘A’ [of the amended application] and Australian Government agencies, Commonwealth authorities or Commonwealth companies or the Australian Capital Territory Government and its agencies.

[3] The Respondent Employers in relation to which the low-paid authorisation is sought oppose the making of the authorisation. There is no dispute about the capacity of United Voice to make this application or that the application was otherwise properly made and I accept that to be the case.

[4] I am not satisfied that it is in the public interest to make the low-paid authorisation sought by United Voice. These are my reasons for coming to that conclusion.

Relevant statutory provisions and context

[5] It is important first to set out and consider the low-paid authorisation provisions in their statutory context. Division 9 of Part 2–4 of Chapter 2 of the Fair Work Act 2009 (Cth) (the Act) deals with low-paid bargaining. Part 2–4 deals with enterprise agreements. The objects of Part 2–4 are found in s.171 which provides:

[6] Section 171(a) refers to providing a fair and flexible framework for collective bargaining for agreements that deliver productivity benefits. While there is no specific reference to low-paid authorisations other than in the statutory note, s. 241 in Division 9 sets out the objects of the division as follows:

[7] These objects include encouraging bargaining for and making of an enterprise agreement for low-paid employees who have not historically had the benefits of collective bargaining, and assisting those employees and their employers, through multi-enterprise bargaining, to identify improvements in productivity and service delivery which also takes account of the needs of individual enterprises. Bargaining for an enterprise agreement is extended to include bargaining for an agreement that covers more than one employer. 2 The objects in s.241 are not to be read in isolation but in the context of the entirety of the enterprise agreement provisions of Part 2–4. As a Full Bench of Fair Work Australia in United Voice v The Australian Workers’ Union of Employees, Queensland3 (Aged Care case) observed:

[8] The persons having standing to make an application are set out in section 242(1) of the Act as follows:

[9] Section 243 contains matters the Commission is required to take into account in determining whether or not to make a low-paid authorisation and provides:

[10] The low-paid bargaining provisions in Division 9 of Part 2–4 relate only to bargaining for a proposed multi-enterprise agreement, although one or more single-interest enterprise agreements may nonetheless result from multi-enterprise bargaining under cover of an authorisation. There are however a number of important differences between bargaining for a proposed multi-enterprise agreement generally and bargaining for such an agreement under the authority of a low-paid bargaining authorisation. First, bargaining orders are available in relation to the latter but not the former. 5 Secondly, the Commission is empowered to intervene on its own initiative to facilitate bargaining in relation to a low-paid bargaining authorisation proposed multi-enterprise agreement whereas otherwise it may only intervene on application, and such an application may only be made if all of the bargaining representatives for the proposed agreement agree to make the application.6

[11] Thirdly, bargaining representatives may by consent have one or more of the terms that should be included in the proposed low-paid multi-enterprise agreement determined by the Commission by arbitration by making a consent low-paid workplace determination. 7 Fourthly, if bargaining representatives for the proposed low-paid authorisation multi-enterprise agreement are genuinely unable to agree on the terms included in the proposed agreement and there is no reasonable prospect for an agreement being reached, the Commission is empowered to determine the dispute about the terms by arbitration by making a special low-paid workplace determination.8

[12] There are also differences between bargaining for a low-paid authorisation multi-enterprise agreement and bargaining for a proposed agreement more generally. These include that disputes about scope of a proposed low-paid authorisation multi-enterprise agreement cannot be resolved by obtaining a scope order as scope orders are only available in relation to a proposed single-interest enterprise agreement 9. Indeed it seems the Commission does not have power to determine disputes about scope in relation to a proposed low-paid authorisation multi-enterprise agreement through a low-paid workplace determination as coverage of such a determination is determined by the coverage specified in the application for a determination.10 Recourse to protected industrial action by bargaining representatives and employees to be covered by a proposed low-paid authorisation multi-enterprise agreement is not available because bargaining representatives cannot apply for a protected action ballot order,11 which is a necessary precondition to organising or engaging in protected industrial action.

[13] It is apparent from this review that the legislative scheme establishing special provisions for low-paid bargaining seeks to strike a balance between the emphasis of the enterprise bargaining provisions generally on collective bargaining particularly or primarily at an enterprise level for agreements that deliver productivity benefits on the one hand, and a recognition of the need and perhaps desirability of providing some additional assistance to certain classes of employees who are low-paid who have historically not had access to collective bargaining or who face substantial difficulty in collectively bargaining at the enterprise level on the other.

[14] Section 243(1) enlivens the public interest in providing the Commission must make a low-paid authorisation if it is satisfied that it is in the public interest to do so, taking into account the matters in ss.243(2) and (3).

[15] In the Aged Care case the Full Bench made the following observations about the nature of the public interest test in s.243(1) of the Act:

[16] To this his Honour Vice President Watson, in Australian Nursing Federation v IPN Medical Centres Pty Limited and Others 13, (Practice Nurses case) added:

[17] I respectfully concur.

Whether a low-paid authorisation must be made

[18] As is apparent from the above, the question of whether a low-paid authorisation must be made in relation to this application turns on whether I am satisfied that it is in the public interest to make the authorisation taking into account the matters in ss.243(2) and (3), having regard to the objects of Division 9 and the legislative scheme understood in the context of the broader scheme of enterprise bargaining established by the Act. I therefore now turn to consider each of the matters specified in ss.243(2) and (3) of the Act in the context of the evidence led and submissions made by the parties in this matter.

s.243(2)(a) - whether granting the authorisation would assist low-paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level

[19] There are several matters that require determination under this consideration. First there is the question of what is meant by the phrase “low-paid employees”? Perhaps more precisely, how is the Commission to identify whether some or all of the employees the subject of this application are “low-paid employees”? Secondly, whether some or all of the employees would be covered by the proposed enterprise agreement are low-paid employees. Thirdly there is a question of what is meant by “assist”? Fourthly, it is necessary to determine whether the identified low-paid employees have not had access to collective bargaining or face substantial difficulty bargaining at the enterprise level.

Low-paid employees

[20] The Act does not contain a definition of “low-paid”. Reference to low-paid in the Act is however not confined to the low-paid bargaining provision in Division 9. It also appears in the minimum wage objective. 15 It is well established that a word that is or words that are used consistently in legislation should be given the same meaning consistently16 unless there is reason to do otherwise.17 Although I note that reference to “low paid” in the minimum wage objective does not contain a hyphen, that omission is not a sufficient reason to ascribe a different meaning to that term in that part of the Act. It seems to me clear that when “low paid” is hyphenated in relation to the low-paid bargaining authorisation provisions it is used as a compound modifier intended to alter the meaning of the word that follows, usually “employee”, “bargaining” or “authorisation”. The use of a hyphen as a compound modifier is unnecessary for the reference to “low paid” in the minimum wage objective because of the grammatical structure of the sentence in which the reference appears. There are no words that follow in relation to which an altered meaning need be ascribed. I therefore agree with the observations of his Honour the Vice President in the Practice Nurses case that “the term low-paid used in the legislation is intended to have a consistent meaning, albeit one that cannot be defined by reference to a strict cut-off point”18.

[21] In the Aged Care case the Full Bench considered the meaning of low-paid employees in the context of a low-paid bargaining authorisation application and concluded that “in the context of the provisions of Division 9 the phrase is intended to be a reference to employees who are paid at or around the award rate of pay and who are paid at the lower award classification levels.” 19

[22] In the Annual Wage Review 2009–10 20 decision, the Expert panel said, about the meaning and identification of low-paid employees, the following:

[23] In the Annual Wage Review 2012–13 decision 22 the Expert Panel observed the following about the meaning and identification of low-paid employees:

[24] In the Annual Wage Review 2013–14 decision 24 the Expert Panel again considered the meaning and identification of low-paid employees and said:

[25] United Voice submitted that the notion of low-paid is a relative concept that is not settled and therefore should not be strictly defined. 26 It submitted that the Commission need only consider the particular circumstances of security workers that are the subject of the application, their relative position to comparable workers and community standards in order to satisfy itself that those employees are low-paid.27 This proposition is overly simplistic, imprecise and will likely yield variable results depending on the comparator used to identify comparable workers and the value ascribed to their relative positions. Accordingly the proposition is rejected.

[26] United Voice also submitted that the Full Bench in the Aged Care case essentially adopted the approach to the identification of low-paid workers of the Expert Panel in annual wage reviews, and in consequence it suggested the appropriate low-paid reference point for determining whether employees the subject of the application are low-paid is whether the employees or some of them are paid at or around the rates of pay in, and classified at, a lower classification under the Security Award. 28 I accept that this is a useful reference point. United Voice submitted that the Respondent Employers’ suggestion that overtime earnings of the employees the subject of this application be taken into account in assessing whether the employees are low-paid should be rejected.29 It submitted that a similar suggestion made by employers in the Aged Care case was rejected and it would be illogical to take such earnings into account.30

[27] The Respondent Employers submitted that in the Practice Nurses case Vice President Watson said that the approach in the Aged Care case and in the annual wage reviews involved a consistent approach and that this was the correct approach to adopt in the case before him. 31 The Respondent Employers did not in terms suggest or accept that this was the correct approach. The Respondent Employers further submitted that an assessment of whether employees are low-paid requires a broad approach to be taken to the meaning and identification of “low-paid” and that the word “paid” should be given its ordinary meaning so that all payments received from an employer for work performed by an employee would fall within the meaning of “paid” and would therefore include such things as overtime payments, penalty payments and over-award payments.32

[28] It seems to me that the appropriate starting point, based on the decisions in the Aged Care case, the Practice Nurses case and the recent decisions of the Expert Panel in the annual wage reviews, in determining the meaning and identification of low-paid employees is to use the measure of those employees receiving less than two-thirds of median adult ordinary-time earnings and to those paid at or below the C10 rate in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award).

[29] Ultimately in determining whether the employees the subject of this application are low-paid employees, the above measures are merely reference points. The utility of measures used to identify low-paid employees will depend upon the data and the data source that are used. As the Expert Panel in the most recent annual wage review clearly illustrated, the practical application of any measure of low-paid, including the two-thirds of median measure, is not straightforward. This is because surveys providing information about the distribution of earnings from which a median is derived vary in their sources, coverage and definitions in ways that affect the absolute values of average and median wages. Consequently the calculation of two-thirds of these values is also affected 33.

[30] It is for this reason that I also accept the view expressed by his Honour the Vice President in the Practice Nurses case that the question of whether an employee is low-paid is a question of degree and necessarily involves some imprecision. His Honour thus proposed a range of low-paid reference points beginning at the C14 Manufacturing Award rate and ending at the two-thirds median adult weekly ordinary time earnings. In my view, that approach is sound.

[31] Whether one takes into account overtime earnings in an assessment of low-paid depends on the measure against which the comparison is made. In some cases including overtime and penalty earnings would distort the outcome if measured against benchmark comparators used by the Expert Panel in the annual wage reviews (i.e less than two-thirds of median adult ordinary-time earnings and to those paid at or at or below the C10 rate in the Manufacturing Award) in assessing low-paid. It might also be contrary to the observations of the Full Bench in the Aged Care case that “there is no indication in Division 9 that we should interpret references to low-paid as equivalent to low income”.

[32] The submission of the Respondent Employers that in assessing low-paid, account should be taken of all payments, including overtime, that are made to employees in the security industry is a submission that I should measure the total wage income received from the employer by the employees. Adopting such an approach without adjusting the data set that is used as the comparator would mean comparing, for example, a measure of less than two-thirds of median adult ordinary-time earnings or less than the C10 Manufacturing Award rate, both of which are ordinary time earning measures, and to the total pay of an employee, which is made up of more than simply ordinary time earnings. This is not in my view an appropriate approach. A different comparative measure such as two-thirds of median full-time weekly cash earnings 34 would need to be used if total wage income is to be taken into account. This simply serves to underscore the desirability of not ascribing a narrow meaning to or measure of low-paid and instead adopting a broad view of the term in the context of the evidence of the pay of the employees the subject of this application.

[33] I would note that in the Aged Care case the Full Bench conducted its analysis of whether nurses working in aged care are low-paid by reference to the ordinary rates of pay payable to nurses notwithstanding that the residential aged care sector operates on a 24-hour seven day a week shift arrangement and that under those arrangements employees would accrue weekend and shift penalty payments. The issue of including earnings other than ordinary time earnings in the assessment did not arise in the Practice Nurses case as practice nurses work in an industry that operates predominantly without shift work.

Are employees the subject of this application low-paid?

[34] United Voice submitted that the employees the subject of this application are low-paid employees and fall broadly within the low-paid reference points used by his Honour in the Practice Nurses case. 35 In support of this proposition United Voice relied on the evidence of a number of security guards36 employed or formerly employed as security officers by several of the Respondent Employers. Without reproducing the totality of the evidence, collectively the evidence discloses the following. The security guards who gave evidence were employed in various capacities ranging from supervisors to security officers and were relevantly classified under the Security Award at levels ranging from security officer level 2 to security officer level 5. Some of the employees who gave evidence occupied supervisory positions and were engaged under differently negotiated remuneration arrangements. The rates of pay received ranged as follows: $18.74 per hour,37 $19.06 per hour,38 $19.89 per hour39 and $21 per hour40 in the case of security officers at the various levels, and $25 per hour41 and $26.40 per hour42 in the case of supervisors.

[35] It is not in dispute that many of the employees who are subject of this application, including those that gave evidence, work or have available to be worked overtime and hours which attract a shift penalty or premium. It is apparent from the evidence that the employees who gave evidence did work overtime and/or shifts attracting a shift penalty or premium. These employees earned, variously, amounts ranging from about $49,000 per annum at the lower end to about $62,400 per annum at the higher end. 43 These per annum income ranges do not take into account the effect (if any) of the most recent annual wage review decision on minimum rates of pay. These annual amounts are obviously higher than the base rate of pay per hour described in the previous paragraph.

[36] United Voice also relied on a petition 44 which purports to be signed by a large number of security guards employed by various of the Respondent Employers. The petition is in a pro forma format and asserts that the signatory is “a low-paid worker”, amongst other things. I do not find pro forma evidence of this kind particularly useful or helpful. Pro forma surveys or petitions of this kind lack rigour. Apart from the few security guards who were called who also tendered a copy of the pro forma survey signed by them, none of the multitude of other signatories of the petition was called to give evidence. The Expert Panel in the most recent annual wage review had cause to criticise the retail industry’s repeated reliance on member surveys to argue its case for exceptional circumstances. The Expert Panel observed that:

[37] Much the same may be said about the United Voice members’ petition. I am not inclined to give the petition any significant weight and certainly not on the question whether the employees the subject of this application are low-paid. The petition itself does not explain to the signatory or to anybody else what is meant by, or how it measures, a low-paid worker. Moreover the Respondent Employers are not given an opportunity to cross-examine the petition signatories and in the circumstances rightly objected to its admission. Ultimately I allowed the petition to be admitted in evidence but for the reasons given I have given it no weight.

[38] United Voice also relied on a report titled Profile of Security Workers in the ACT (UV Report) prepared by Dr Kim Houghton of Strategic Economic Solutions in December 2013. 46 The UV Report was prepared on the basis of a combination of analysis undertaken of statistical data that is publicly available and a survey of members conducted by United Voice in Canberra in November 2013.47 The UV Report concludes relevantly that as a class security workers in the ACT are paid less than comparable occupations and less than the national average wage for the occupation.48 The UV Report also concludes that ACT security workers employed in the private sector are paid considerably less ($51,283 per annum on average) than those employed directly by government ($76,895 per annum on average).49

[39] The UV Report is helpful at a general level but has its limitations. The most significant of which is that it does not address the pay profile of private sector security workers in comparison with any of the measures identified above which will have a bearing on determining whether the employees the subject of this application are low-paid. Short of creating yet another potential measure of low-paid based on the UV Report, the report provides little assistance in making the assessment that I need to make. Moreover it was accepted by Dr Horton that his conclusion that ACT security workers are paid on average $51,283 per annum was based on data as at August 2011 and did not take into account subsequent wage increases, although the relative comparison with government-employed security workers would likely be unaffected 50, as those workers would also have benefited from increases in their wages.

[40] The Respondent Employers submitted that taking into account the increases in award wages since August 2013, the average annual wage for private sector security workers in the ACT would now be $57,539.53. 51

[41] The range of annual wages earned by the employees who gave evidence in these proceedings is approximately 20% lower than this figure at the bottom end, and approximately 8% higher than this figure at the top end of the range.

[42] It would seem that a significant majority of the employees who are the subject of this application are employed at the security officer level 3 grade. 52 The current minimum weekly rate of pay for that classification under the Security Award is $753.30. The classification is the midpoint in a 5 level classification structure but in weekly wage terms is closer to the bottom ($33.20 per week higher than level 1) than the top ($37.30 lower than level 5). The pattern of work is also variable amongst the employees with, in some cases, the regular pattern of full-time work comprising shifts of four on and four off, with each shift comprising 12 hours.53 The hours of work in each week may vary under this cycle, however for example if an employee worked the four on and four off pattern during the month of September 2014, with the first shift commencing on 1 September 2014, during that month the employee working to such pattern will have worked a total of 192 for the month or 48 hours in each week. Some of that work will have been performed on weekends and outside of normal operating hours of the premises to which the employee is assigned. In other cases full-time employees work a pattern which involves an average of between 87 hours and 89 hours per fortnight (43.5 hours or 44.4 hours per week).54 The occurrence of overtime will result in an additional payment for the additional hours worked in some cases,55 and in others the roster pattern includes some overtime with the annual salary received including overtime payments.56

[43] It also seems clear from the evidence that employees employed at the security officer level 3 classification by the various Respondent Employers are paid at or about the equivalent of the corresponding rate for that classification in the Security Award. As indicated above the current minimum weekly rate for a security officer level 3 is $753.30 per week or $19.82 per hour calculated on a 38 hour week. The current minimum weekly wage for the C10 classification under the Manufacturing Award is $746.20 per week or $19.64 per hour calculated on a 38 hour week. The differential is less than 1% in favour of the Security Award.

[44] It is not necessary for me to determine that all of the employees the subject of the application are low-paid, it will be sufficient that some of them are. On this measure of low-paid, some of the employees the subject of this application are paid only marginally above the rate of pay for the C10 classification under the Manufacturing Award, and on this measure they are paid at about that rate. On this measure such employees are in my view low-paid.

[45] The most recently available data from the ABS on full-time median earnings in main job is as at August 2013. 57 The latest annual wage review used the previous year’s corresponding ABS data set. The currently available data shows that median weekly earnings of full-time employees in their main job was as at August 2013, $1152.00. Two-thirds of the median is therefore $768.00. This is higher than the minimum weekly wage for the Level 3 security officer under the Security Award. It follows that on this measure some of the employees the subject of this application are low-paid.

[46] Turning then to the actual income earned by employees the subject of this application. As I have earlier indicated, the total salary received by employees who gave evidence ranged between $49,000 per annum at the lower end and about $62,400 per annum at the higher end. In my view a relevant comparator for the purposes of making an assessment of whether the employees or some of them are low-paid would be to examine the weekly total cash earnings by sector data published by the Australian Bureau of Statistics 58. Relevantly, the comparator should be the full-time non-managerial adult employee distribution of weekly total cash earnings by sector59. Under this measure the median weekly cash earnings of a non-managerial adult employee in the private sector was $1140 per week. This translates to median annual cash earnings of $59,280. This figure represents median annual cash earnings as at May 2012. In order to make an appropriate comparison it is therefore necessary to adjust the range of earnings noted above of employees the subject of this application downwards by at least the increases to the minimum wage determined by the annual wage reviews of 2012–13 (2.6%) and 2011–2012 (2.9%). It is not necessary to make an adjustment for the most recent minimum wage adjustment because the range of earnings indicated above were given before those adjustments took effect. The adjusted range therefore is $46,342 per annum at the lower end and $59,015 per annum at the higher end.

[47] Two-thirds of the median annual cash earnings of full-time non-managerial adult employees in the private sector is $39,520. On this comparison the lower end range employees are earning approximately 14.7% more than the two-thirds median. However when examining annual cash earnings for all full-time non-managerial adult employees the two-thirds median annual cash earnings is $41,974 60 or approximately 10.4% lower than the lower end range of earnings of employees the subject of this application. When account is taken of the median annual cash earnings of all full-time adult employees in the private sector the two-thirds medium average cash earnings is $43,67161 or approximately 5.8% lower than the lower end range of earnings of the employees the subject of this application.

[48] It needs to be borne in mind that the data relating to full-time non-managerial employees is founded on hours of work which on average are 39.4 per week 62. This is between 10.5% and 18% lower than the number of hours worked by many of the employees the subject of this application. When account is taken of the differential number of hours worked by full-time employees the subject of this application and the corresponding two-thirds median annual cash earnings of full-time non managerial employees for average hours of 39.4, it can readily be concluded that employees who are at the lower end of the range of earnings are paid below or at or about two-thirds median annual cash earnings for full-time non-managerial adult employees on a comparable hours comparison.

[49] The Respondent Employers submitted that private sector security employees the subject of this application are typically engaged on a four on and four off roster and most of these employees are security officer level 3 under the Security Award 63. They submitted that most full-time non-supervisory employees who gave evidence for United Voice worked on this basis and that the annual salary of this typical employee would before the most recent minimum wage adjustment, be $54,334.32 per annum64. When an adjustment is made for the increases to minimum wages by the 2012 – 2013 and 2011- 2012 annual wage reviews, the “typical” annual salary is $51,387 per annum. Employees working a four on and four off roster would work hours per week of 18% higher than the average number of hours worked by full-time adult non-managerial employees. Making an adjustment for an hours worked differential, the adjusted annual salary rate for a level 3 security officer working on a typical four on four off roster is $42,137 per annum. This annual rate is higher than the two-thirds median annual cash earnings of a full-time non-managerial adult employee in the private sector ($39,520), but it is lower than the two-thirds median annual cash earnings of all full-time adult employees ($43,671). On this analysis the “typical” employees fall between two stools, but the comparison demonstrates that the employees are earning at about the median and in my view are low-paid.

[50] Because of the absence of particular wage data for all of the employees the subject of this application, it is not possible to conclude with any precision whether all or a significant proportion of employees are low-paid. Nevertheless on the evidence available it seems to me clear that some of the employees the subject of this application are low-paid based on the measures discussed above and based on the low-paid reference points discussed by his Honour in the Practice Nurses Case.

Assist low-paid employees who have not had access to collective bargaining or face substantial difficulty is bargaining at the enterprise level?

[51] In assessing whether granting a low-paid authorisation would assist low-paid employees who have not had access to collective bargaining or face substantial difficulty bargaining at an enterprise level it is necessary first to identify the assistance that might be provided by an authorisation. It seems to me that the assistance that might be provided to low-paid employees must relate to engaging in collective bargaining with their employer albeit on a multi-enterprise basis. Assistance will also relate to making an enterprise agreement albeit a multi-enterprise agreement that meets the needs of the employees and their employers. 65 Assistance may be in the form of enabling the identification of improvements to productivity and service delivery through bargaining for a multi-enterprise agreement but taking into account the specific needs of the individual enterprises that will be covered by the multi-enterprise agreement.66 The assistance may also be directed at addressing constraints on the ability of the employees and their employers to bargain at the enterprise level, such as those relating to a lack of skills, resources, bargaining strength or previous bargaining experience.67 Assistance might also be in the form of Commission involvement in the bargaining process to facilitate bargaining for an enterprise agreement albeit a multi-enterprise agreement,68 though that need not necessarily be the result.

[52] The class of low-paid employees to whom assistance might be rendered by a low-paid authorisation is twofold. First, there are those who have not had access to collective bargaining. Secondly, there are those who face substantial difficulty bargaining at an enterprise level. I agree with the submissions of United Voice that the consideration in s.243(2)(a) might involve a group of low-paid employees who have had access to collective bargaining but who nonetheless face substantial difficulty in bargaining at an enterprise level. 69

[53] Turning then to the first class of low-paid employees, those who have not had access to collective bargaining. It seems to me that low-paid employees who have not collectively bargained are not necessarily and automatically within its class. This is apparent from the reference to “access to” in s.243(2)(a). The word “access” should be given its ordinary meaning and in the context of s.243(2)(a), it connotes having the ability, right or permission, or the way, means or opportunity, to collectively bargain. Low-paid employees, who do not wish to collectively bargain, will not have collectively bargained though they have access to collective bargaining. As a minimum, it seems to me that assessing whether a group of persons has not had access to collective bargaining requires an assessment of whether there was some attempt or desire to collectively bargain which was denied, refused or somehow frustrated. Evidence that a group of employees has not collectively bargained by itself is not evidence that the group has not had access to collective bargaining. It is only evidence that there has been no collective bargaining for that group.

[54] Identifying low-paid employees who might come within the second class, namely those facing substantial difficulty bargaining at the enterprise level first requires an identification of the difficulties faced. Secondly, it requires an assessment of whether the identified difficulties are substantial. Thirdly it requires an assessment of whether the difficulties impact on the capacity to bargain at the enterprise level.

[55] I do not accept as submitted by United Voice that the measure of substantial difficulty bargaining at an enterprise level is the existence of “unsatisfactory” bargains or “substandard agreements”. 70 Apart from the obvious subjective and value judgement based measures of that which is unsatisfactory or substandard, there is no basis, having regard to the text of s.243(2)(a), for that submission. The provision is concerned with access to collective bargaining or substantial difficulty in bargaining. It is not concerned with outcome. That a group of employees has access to collective bargaining or does not face any difficulty in bargaining at an enterprise level does not mean that an enterprise agreement will be made at all or that an enterprise agreement of a particular kind or standard will be made. It would be strange therefore if an assessment of whether a particular group of low-paid employees faced substantial difficulty bargaining at the enterprise level would be made by reference to the nature or content of a collective agreement previously made which applied to that group.

[56] I also do not accept the submission of United Voice that the reference to “collective bargaining” in s.241 of the Act means collective bargaining under the Act. 71 By necessary implication, this would extend to use of that term and the word “bargaining” in s.243. First, in s.241 the words “collective bargaining” are preceded by the words “who have not historically had the benefits of”. This is suggestive of a measure of collective bargaining dating back beyond the commencement of the Act. Secondly, had the Parliament intended such a narrow construction it would have either inserted a definition of “collective bargaining” to that effect, or added to the words “collective bargaining” in s.241, the words “under this Act”. Neither course has been adopted. Thirdly, the meaning of “collective bargaining” is well understood. Collective bargaining is not the offspring of the Act. Its statutory lineage can be traced back through the Workplace Relations Act 1996 and before it the Industrial Relations Act 1988. Given this, it would be a strange result to so narrowly construe its meaning.

[57] Turning then to the evidence relevant to the assessment of whether the low-paid employees fall within either of the two classes. In my view insufficient attention was paid to this consideration by United Voice in the evidentiary case it sought to advance. The evidence so far as is relevant to this consideration section established the following:

(a) Secom Security

[58] On the evidence it can hardly be said that low-paid employees of Secom Security have not had access to collective bargaining. The recent history discussed above shows otherwise. Nor can it be said that those employees face substantial difficulty bargaining at an enterprise level. This is because, first there is little by way of probative evidence to show that low-paid employees of Secom Security face particular and identifiable substantial difficulty. Second, such evidence as was available was generalised and did not identify particular difficulties. The evidence concerned outcome. For example; evidence that “no-one has ever come to us with an enterprise agreement that would lift wages...if Secom...came to us with a proposition to lift wages...”, 74 is not evidence that identifies any difficulty faced by low-paid employees. It is only evidence that Secom has not made an offer on wages that is acceptable to United Voice. It seems clear that such employees have had access to collective bargaining and continue to do so in relation to the current bargaining round. The only difficulty faced by the employees seems to be the desire of the ACT Branch of United Voice to have a territory-based agreement covering the employees in the ACT rather than a national agreement. This is not a substantial difficulty bargaining at an enterprise level faced by low-paid employees. Such coverage and scope disputes are common to collective bargaining.

(b) MSS Security

●Bargaining for a new agreement has been the subject of proceedings in the Commission and the statement prepared for that purpose by Mr Cheatham shows that there has been a substantial period of bargaining for the proposed agreement; 77

●Ultimately approval for the proposed agreement was sought from employees by ballot conducted between 12 April 2013 and 10 May 2013, the result of which was a valid majority of employees approving the proposed agreement; 78

[59] It seems to me on the evidence that low-paid employees of MSS Security have had access to collective bargaining and that access to collective bargaining resulted in an agreement that was approved by a valid majority of employees and one that was supported by United Voice. That the proposed agreement was ultimately assessed as not passing the better off overall test is not in my view a substantial difficulty to bargaining at the enterprise level faced by the low-paid employees. Rather it is simply evidence that the agreement arrived at as a product of bargaining at the enterprise level was one that did not meet the statutory criteria. No other evidence of any particular difficulty faced by low-paid employees of MSS Security was given.

(c) Wilson Security

[60] There is an insufficient evidentiary basis from which it might be reasonably concluded that low-paid employees of Wilson Security have not had access to collective bargaining or that they face substantial difficulty in bargaining at the enterprise level. Such evidence as was adduced in the proceeding points the other way. From the evidence an inference can be drawn that Wilson Security does not oppose collective bargaining or making enterprise agreements. It clearly has bargained for and made agreements covering its employees in other states. Apart from attempts in 2010 and 2011 by United Voice to pursue an industry-wide agreement in the ACT with employers including Wilson Security, there seems little activity on the part of United Voice or employees of Wilson Security to seek to collectively bargain. There is no evidence that United Voice for example took steps such as seeking a majority support determination, if as alleged by it, Wilson Security and some other Respondent Employers were not prepared to enter into formal negotiations. 89 In the present circumstances it cannot be said that a group of persons has not had access to collective bargaining or faces substantial difficulty in bargaining at an enterprise level. No relevant significant difficulty has been identified and on the evidence neither the employees nor the default bargaining representative, United Voice, has taken any significant step to collectively bargain with Wilson Security so as to bring the state of affairs about.

(d) SNP

●There is no history of collective bargaining with SNP in the ACT but SNP is covered by an enterprise agreement in relation to its contract at Sydney airport; 91

●The evidence of employees of SNP that it is “difficult to bargain with security employers”; 92 “really hard to bargain security industry in the ACT”;93 “really hard to bargain in the security industry”;94 and “difficult to bargain for an agreement because my employer has to compete for contracts and the clients pick the lowest price”95 is evidence of a very superficial kind and does not speak to either the question of access to collective bargaining or to any substantial difficulty in bargaining at an enterprise level.

[61] As in the case of Wilson Security, there is an insufficient evidentiary basis from which it might reasonably be concluded that low-paid employees of SNP have not had access to collective bargaining or that they face substantial difficulty in bargaining at the enterprise level. There is no evidence that United Voice took steps such as seeking a majority support determination, if as alleged by it, SNP and some other Respondent Employers were not prepared to enter into formal negotiations. 96 There is no evidence of any attempt at collective bargaining with SNP at the enterprise level.

[62] At a more general level, United Voice relied on the evidence of Ms Lyndal Ryan, the ACT Branch Secretary of United Voice, to support its proposition that low-paid employees the subject of this application face substantial difficulty bargaining at an enterprise level. In particular United Voice relied on the following evidence given by Ms Ryan variously set out in the transcript: 97

[63] This evidence is not sufficiently probative of the issue of substantial difficulty bargaining at the enterprise level. The evidence demonstrates only that United Voice takes one position on wages, Secom Security takes another, and other employers also have different positions. Differing positions in bargaining is hardly indicative of a substantial difficulty. The evidence also shows that to the extent the Respondent Employers were not responsive to propositions of United Voice, this was in the context of multi-enterprise bargaining or template single employer agreement proposals put to the various Respondent Employers, which is likely to amount same thing. This is not evidence of any substantial difficulty to bargain at an enterprise level since it shows no attempt to so bargain. Ms Ryan’s evidence that in respect of MSS Security, there was an agreement reached which ultimately was not approved is also not in and of itself evidence of a substantial difficulty. There is no evidence that any further attempt has been made by United Voice to bargain with MSS Security for an agreement that can be approved by the Commission.

[64] Furthermore, the Act contains mechanisms which deal with a failure to respond to proposals during the course of bargaining in a timely fashion. There is no evidence that United Voice has sought to have recourse to any of the mechanisms available under the Act to ensure that the Respondent Employers meet their good faith bargaining obligations, if it is said, as suggested by Ms Ryan’s evidence, that they have not done so. That an employer is not bargaining in good faith is not, in and of itself, evidence that there is substantial difficulty in bargaining at an enterprise level. However if the failure is to be relied upon for that purpose, it seems to me at the very least, mechanisms available under the Act to rectify non-compliance with good faith bargaining obligations should first be accessed, before failure to respond to proposals is put as a substantial difficulty to bargaining at the enterprise level.

[65] For the differing reasons given above in relation to each of the Respondent Employers, I am not persuaded on the evidence that low-paid employees of the Respondent Employers have not had access to collective bargaining or that they face substantial difficulty bargaining at the enterprise level. Given that conclusion it is unnecessary for me to give consideration to whether the making of a low-paid authorisation would assist in the relevant sense, as on the basis of my conclusion, although some of the employees the subject of this application are low-paid employees, none of those employees are low-paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level.

[66] Difficulties or barriers to bargaining at the enterprise level will usually only be realised once bargaining for an agreement at that level has been attempted. Only then will it be known whether those difficulties are substantial. As I have earlier indicated, in relation to some of the Respondent Employers there is no evidence of any attempt to bargain at the enterprise level. The “substantial difficulty” must be real not just imagined or even just anticipated. Imagined difficulties might prove to be just that, and anticipated difficulties might prove to be not so substantial or insurmountable, once the reality of bargaining begins.

[67] In the circumstances this is not a factor that weighs in favour of making an authorisation.

s.243(2)(b) - the history of bargaining in the industry in which the employees who will be covered by the agreement work

[68] The consideration in s.243(2)(b) requires first, that the industry in which the relevant employees work be identified. For the reasons given later in this decision, the industry is determined by reference to the industry of the employers not the vocation of the employees.

[69] The evidence about the history of bargaining in the industry is, to say the lease, scant. Both United Voice and the Respondent Employers focussed attention on the history of bargaining as it related to the Respondent Employers. 101 While this is relevant to the overall history of bargaining in the industry, it only goes to that part of the industry represented by the Respondent Employers. It seems clear that outside of the ACT there is some history of bargaining as is evident from the operative collective agreements covering Wilson Security in several states, SNP at Sydney Airport and negotiations for a national agreement involving Secom Security and United Voice. Beyond that evidence however there is no evidence from which conclusions about the history of bargaining in the industry might be drawn.

[70] United Voice relied upon the evidence of Ms Ryan 102 to establish a history of bargaining in the industry. Apart from the generalised statement at [3] of Ms Ryan’s witness statement, her evidence was largely confined to the history as it related to the Respondent Employers.

[71] United Voice submitted that based on Ms Ryan’s evidence the following represents that history:

[72] In my view that this is not what Ms Ryan’s evidence establishes. The recent history of bargaining set out at [13] – [32] of her witness statement and in the documents attached thereto 104 establishes that initial attempts at bargaining by United Voice occurred on a multi-enterprise basis and not a single-enterprise basis. As indicated above, the evidence shows that United Voice has been bargaining with MSS Security and had reached agreement with it, albeit that agreement was not approved by the Commission.

[73] Furthermore, and as discussed above, the evidence also shows that employees of Secom Security are covered by the Secom Security Employee Collective Agreement 2009–2014, the nominal expiry date of which has only recently passed on 30 May 2014; 105 that Secom Security has proposed a further enterprise agreement for which it sought approval from employees and in relation to which there had been bargaining from November 2012 through to August 2013 and at which United Voice were represented and involved in bargaining discussions; that the proposed agreement is a national agreement; that there seems to be a dispute or disagreement between the National Office and the ACT branch of United Voice; and that bargaining is being supervised by the Commission pursuant to a bargaining dispute notified to the Commission by United Voice on 5 May 2014.106

[74] There is at the very least an opportunity to continue bargaining between United Voice and each of MSS Security and Secom Security at an enterprise level for an agreement. Although there is no recent history of bargaining in the ACT with the other Respondent Employers, there is no evidence of any unwillingness of the other Respondent Employers to bargain at an enterprise level for an agreement. Indeed that those employers have operational enterprise agreements elsewhere in their businesses is suggestive that there is a preparedness to bargain and reach agreement. That those employers have not agreed to the claims made by United Voice in the ACT is not suggestive of the contrary. Little or no effort has been made by United Voice in relation to Wilson Security and SNP to bargain at an enterprise level.

[75] In the circumstances, the history of bargaining in the industry, so far as it relates to the Respondent Employers, in which the employees who will be covered by the proposed multi-employer agreement work, is not a factor that weighs in favour of granting an authorisation.

s.243(2)(c) - the relative bargaining strength of the employers and employees who will be covered by the agreement

[76] It cannot seriously be doubted that relative bargaining strength or power relationships will have an impact on outcomes in collective bargaining. Relative bargaining strength or bargaining power will likely determine the share of resources available for allocation in bargaining framework. The concept of bargaining strength and its measure is however elusive.

[77] In order to make an assessment of relative bargaining strength of the Respondent Employers on the one hand and the employees who will be covered by the multi-employer agreement on the other, it is perhaps first useful to outline some possible determinants of bargaining strength. It seems to me that bargaining strength in the context of collective bargaining for an agreement is derived from multiple legal, economic, social, and structural sources that are able to be controlled to varying degrees by an employer on the one hand and employees on the other. Within this rubric arises questions of the degree of control over the resources that are available for allocation in bargaining that one party has compared to the other; the influences that one party can use to influence the bargaining process compared to the other; the capacity of one party to organise, mobilise and deploy the resources available to that party to maximise their influence over the bargaining; and intangible considerations such as attitudinal attributes.

[78] The dependence of one party on the other will also play a role in determining relative bargaining strength and so the more dependent one party is on the other, the lesser is that party’s bargaining strength. The skills possessed by a party, the level of demand for those skills, the commitment to the bargaining relationship and information available to the parties will all play a role in determining bargaining strength and in measuring relative bargaining strength.

[79] United Voice submitted that the employees who will be covered by the multi-enterprise agreement are low skilled workers and that the level of skill bears, “as a matter of logic” an immediate relationship to their bargaining strength. 107 This proposition is overly simplistic and I do not accept that it follows as a matter of logic or otherwise. Whilst the level of skills possessed by a group of employees will doubtless be a factor in determining relative bargaining strength, it is more likely to be the case that this will arise because of demand for the skills possessed rather than the skills themselves. Just as there can be an oversupply of highly skilled workers of a particular class, so too there can be more demand for low skilled workers than the number of workers willing to supply labour to perform the low skilled work. The geographic location where the demand for particular skills is required will also be a factor, as will the mobility of members of the particular group between employers each competing for the skills required.

[80] Furthermore the notion of “low skilled” workers is in itself imprecise. As the Respondent Employers have rightly pointed out the great majority of the employees who are the subject of this application are classified at level 3 of the Security Award. The rate attached to that classification is slightly higher than the rate of pay attached to the C10 classification in the Manufacturing Award, which itself is a tradesperson or “skilled” classification. The evidence of the level of skill possessed by employees the subject of this application was by way of assertion rather than fact. No evidence was led to identify how skills are to be measured and once particular skills are identified how they are to be assessed and classified. Merely asserting that because the employees are not required to have a tertiary qualification means that they are low skilled 108 is in my view an inadequate basis for so concluding and pays no attention to the actual skills that are possessed by and required of the relevant employees.

[81] United Voice also submitted that the absence of industrial action taken in support of bargaining for an agreement in relation to the Respondent Employers is a basis from which an inference may be drawn as to relative bargaining strength. 109 Recourse to protected industrial action to support or advance claims made by employees in bargaining for an agreement is a legitimate mechanism recognised by the Act. However before the inference as suggested by United Voice could or should be drawn, it must first be shown that the organising or taking of industrial action was attempted. Alternatively it must be shown that there is some reluctance, inability or other impediment to taking industrial action. In this case there is no evidence that employees or United Voice sought a protected action ballot order in relation to any bargaining. United Voice has for example engaged in bargaining with MSS Security, yet there is no evidence that it sought to advance its bargaining position by seeking a protected action ballot order. Nor is there any probative evidence that there is a particular inability or impediment to employees the subject of this application taking industrial action. All that can be said presently is that no industrial action has been taken. It cannot be concluded from that fact that the absence of industrial action is indicative of low bargaining strength.

[82] Furthermore there are a number of other avenues available to United Voice and the employees the subject of this application under the Act to have bargaining commenced, facilitated or further progressed. That these avenues are available is a factor going to relative bargaining strength. There is little in the evidence that would suggest that these avenues have been properly utilised or utilised at all by United Voice or the employees the subject of this application, and so the extent to which that factor may affect an assessment of relative bargaining strength cannot presently be determined.

[83] On the whole the quality of evidence available in this proceeding from which a sensible assessment of the relative bargaining strength of the relevant employees and Respondent Employers might be made is poor, but I am prepared to assume on the basis of the material before me that on a relative basis the Respondent Employers are in a stronger bargaining position than the employees the subject of this application. On the evidence however I am unable to make any proper assessment of just how wide the gap in bargaining strength might be.

[84] In the circumstances of this case this factor lends some, although not significant, weight in support of the grant of an authorisation.

s.243(2)(d) - the current terms and conditions of employment of the employees who will be covered by the agreement, as compared to relevant industry and community standards

[85] It seems clear from the evidence that the current terms and conditions of the employees who will be covered by the multi-enterprise agreement as far as it relates to base pay, are consistent with and not generally higher than the rates of pay provided for in the Security Award. The majority of the employees are classified at the level 3 security officer classification prescribed in that award. The four on and four off roster and arrangements that seems the predominant shift pattern means that many full-time employees work in excess of 38 hours per week on a systematic and regular basis. By reason of overtime and penalty payments inherent in the roster arrangement, the actual pay received by these employees will be higher than the minimum weekly wage for the classification under the Security Award. The minimum terms and conditions set out in the National Employment Standards will also apply to these employees.

[86] The Security Award is an industry award as is made clear by clause 4.1 of that Award. There is little by way of evidence in the proceedings concerning terms and conditions of employment other than wages but it seems clear that two of the Respondent Employers employ their employees pursuant to the terms and conditions of the Security Award whilst the other two Respondent Employers have in place agreements, which on review provide similar terms and conditions of employment to those found in the Security Award. There was no evidence about the terms and conditions of other employees in the industry who are not subject of this application, although it is noted that outside of the ACT some of the Respondent Employers are covered by operative enterprise agreements.

[87] On the basis of the evidence it seems to me that when compared to the relevant industry standards, namely the ACT security industry, there is an insufficient evidentiary basis on which any meaningful conclusion about the comparison could be reached. On the assumption that other employers in the security industry in the ACT also employ security officers pursuant to the Security Award, then all that can be said is that the employees the subject of this application are employed on terms and conditions of employment that are comparable.

[88] United Voice sought to rely upon comparisons with the terms and conditions of security officers employed directly by government as a basis for comparing the terms and conditions in the relevant industry. It relied on the UV Report prepared by Dr Houghton to make good the submission 110 that employees the subject of this application are in receipt of terms and conditions of employment that are less favourable than government employed security personnel. Although the submission may well be correct, the comparison which underpins the submissions is not the appropriate comparison to which the consideration in s. 243(2)(d) is directed.

[89] I do not accept that security officers employed by government in the ACT are employed in the security industry. Such employees are government employees and are employed in the public sector. The comparison required is not as between employees performing similar vocational functions regardless of the industry in which they are employed. Comparison is of employment conditions of the relevant employees with the employment conditions in “the relevant industry”. I agree with the conclusion of his Honour the Vice President in the Practice Nurses case that for the purposes of making an assessment of the matters set out in s.243(2)(d) “a relevant industry or relevant industry standard is one derived from a comparison of the industry of the employers, not the vocation of the employees.” 111

[90] As to a comparison of the terms and conditions of employment of the employees the subject of this application to community standards, United Voice relied upon the excess hours worked by security officers employed by the Respondent Employers as indicative of terms and conditions of these employees that were out of kilter with community standards. 112 There can be little doubt that the regularity with which full-time employees the subject of this application work in excess of 38 hours per week puts them beyond the maximum number of weekly hours of work prescribed by the NES.

[91] The Respondent Employers submitted that the community standard for hours of work is established by the NES, which by s.62 of the Act provides for an average of 38 hours per week plus reasonable additional hours. This is not precisely correct. The question of averaging hours of work is to be determined by the applicable modern award or enterprise agreement if that instrument so provides, 113 or in the case of award- or agreement-free employees, by agreement in writing with the employer.114 On its face s.62 of the Act prohibits hours of work in excess of 38 unless those additional hours are reasonable. On this basis the community standards is a maximum of 38 hours per week unless additional hours are reasonable, or if there is an averaging of hours arrangement in place pursuant to an applicable award or enterprise agreement, or absent such an instrument an agreement in writing between the employer and employee, it is the applicable averaging scheme or a combination of each.

[92] The Security Award provides for an averaging of hours as follows:

[93] That said there is no evidence before me on which I could properly rely to form a view one way or the other whether the additional hours worked by full-time employees the subject of this application in excess of an average of 38 hours per week are reasonable.

[94] The comparisons made in the UV Report to comparable occupations provides no assistance to the consideration required by s. 243(2)(d) as the comparisons do not speak to the terms and conditions of employment in the relevant industry nor to terms and conditions of employment by reference to community standards.

[95] As to the comparisons sought to be drawn by United Voice with the terms and conditions of employment of security officers elsewhere in Australia I accept the submission of the Respondent Employers that whilst the award rates of pay of security officers in the ACT have been less than the rate of pay received by security officers elsewhere in Australia, this was a result of transitional arrangements under the Security Award. The transition has now been completed, so there is no differential in the award rates of pay. 115

[96] It seems to me that the minimum terms and conditions of the employees the subject of this application are in most respects no less beneficial than the minimum terms and conditions that apply elsewhere and are the community standards. These community standards comprise the minimum terms and conditions set out in the relevant modern award and the minimum terms and conditions set out in the NES. There is nothing in the evidence from which it can be concluded that on a minimum terms and conditions comparison the employees the subject of this application are disadvantaged when compared to community standards. Furthermore there is no probative evidence, which would assist in a conclusion that the actual terms and conditions of those employees compare less favourably to the actual terms and conditions by reference to community standards.

[97] At best this consideration is neutral on the question whether an authorisation should be made.

s.243(2)(e) - the degree of commonality in the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises

[98] It is accepted by the Respondent Employers that there is a degree of commonality between their respective enterprises. That is, each operates in the security industry and provides security services as contractors to clients. 116 In the ACT the clients are mainly government clients. The legislative framework which overarches the industry applies to the enterprises.117 In this regard, and noting that there will be differences, the Respondent Employers provide substantially similar services to clients. The Respondent Employers’ enterprises do however compete both with each other and with other operators in the industry.118 It is not in dispute that the employees employed in these enterprises carry out essentially the same kind of work.

[99] It seems to me that the major variable as between enterprises will be the operating environments in which services are delivered and work is performed and the contractual conditions under which that work is performed. So much is apparent from the variety of different locations at which employees who gave evidence in these proceedings worked, 119 and the fact that procurement of security services is determined by individual department procurement practices rather than through any central or all of government approach.120

[100] As is evident from my earlier discussion in this decision, the terms and conditions of employment of employees employed in the enterprises are similar but not the same. There is a mix of agreement and Security Award terms and conditions as well as variable rostering patterns and hours of work.

[101] The degree of commonality between enterprises the subject of this application is a factor that weighs in favour of the grant of an authorisation, however as a counterbalance appropriate regard must be had to the fact that ultimately the enterprises compete for contracts and for work. In the circumstances of this case I regard this consideration to be essentially neutral.

s.243(3)(a) - whether granting the application would assist in identifying improvements to productivity and service delivery at the enterprises to which the agreement relates

[102] This consideration requires an assessment to be made as to whether a low-paid authorisation would assist in identifying improvements to productivity and service delivery at the enterprises operated by the Respondent Employers.

[103] United Voice submitted that the Act is structured in a way to encourage productivity improvements through collective bargaining and that collective bargaining has a positive impact on productivity. 121 This submission misses the point. The consideration is not about whether collective bargaining would so assist; rather it is concerned with whether the granting of an authorisation would so assist.

[104] United Voice also submits that a reduction of staff turnover has already been identified as a productivity improvement by senior security industry managers. 122 This submission also misses the point. If that measure has been identified, it is difficult to see how the grant of an authorisation would assist in identifying that which is already apparent.

[105] United Voice also rely on the evidence of Ms Ryan who said she believes “that any resulting bargaining assists in identifying improvements to productivity and service delivery at the enterprises of the Respondents”. 123 Ms Ryan does not say how this will occur or how the authorisation would assist. Her evidence is no more than a statement of belief.

[106] Moreover it seems to me that Ms Ryan’s evidence is that her belief is that bargaining (not an authorisation) will achieve this result as is evident from the following evidence:

[107] Ms Ryan and United Voice have presently available to them collective bargaining opportunities in respect of Secom Security and MSS Security. If bargaining is to be the vehicle through which improvements to productivity and service delivery are identified, that vehicle seems to me to be ready and waiting in respect of these two Respondent Employers. An authorisation would at best be premature. As to the remaining Respondent Employers, as I have earlier indicated there is little evidence of any effort by United Voice to collectively bargain or to use the existing mechanisms under the Act to enable bargaining to begin or to be facilitated. If, as Ms Ryan suggests, bargaining will achieve (or assist in) the identification of productivity and service delivery improvements, then that should be done. It seems to me in the circumstances if this case that it would be premature to issue an authorisation in order to achieve that end.

[108] In any event United Voice has failed to establish any basis upon which it could be said that the grant of an authorisation would assist in identifying improvements to productivity and service delivery in the enterprises operated by the Respondent Employers.

[109] In the circumstances this consideration weighs against the grant of an authorisation.

s.243(3)(b) - the extent to which the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process.

[110] United Voice submitted that if an authorisation is granted, the resulting bargaining process would be manageable because United Voice is the only union that is able to be a bargaining representative of employees of the Respondent Employers. Furthermore, based on the number of petitions signed by security officers it is likely that United Voice will be the principal bargaining representative of the employees. 125 It also submitted that it was likely that the Respondent Employers would be represented collectively by an industry Association.126 This last submission is contrary to the evidence.127

[111] It cannot be assumed that United Voice will be the only employee bargaining representative in negotiations for a multi-enterprise agreement. Ms Martha Travis, the HR/IR Manager NSW/ACT for MSS Security, suggested in her evidence that employees will likely be represented by other employee bargaining representatives and that viewed as a whole, multi-enterprise bargaining is likely to become unmanageable. 128

[112] I do not accept that this necessarily follows. The number of employers that will be involved in bargaining for a multi-enterprise employer agreement is relatively low. It is the case that United Voice will be the only union employee bargaining representative. That other employees may wish to become involved in the bargaining through the appointment of one or more bargaining representatives is to be anticipated but I do not accept, on its own, that this will result in unmanageability of the bargaining. Any difficulties that might be encountered can be dealt with in accordance with the Act.

[113] I accept the evidence of Ms Travis that during the most recent bargaining for the MSS Security agreement there were nine employee bargaining representatives and United Voice involved in bargaining. 129 However she did not give any evidence that this led to unmanageability other than a suggestion that some employees raised an objection to the approval of the agreement.130 This does not speak to the manageability of bargaining, and in any event, the objection taken arose after bargaining had concluded.

[114] On the whole I am not satisfied that the likely number of bargaining representatives for the multi-employer agreement would unduly impact on the manageability of bargaining. Consequently this factor weighs in favour of the grant of an authorisation.

s.243(3)(c) - the views of the employers and employees who will be covered by the agreement

[115] It is clear that the Respondent Employers oppose the grant of an authorisation and oppose becoming involved in multi-enterprise bargaining.

[116] United Voice relied upon the evidence given by employees called by it 131 as well as the petition of employees it tendered in evidence132 as evidence that overwhelmingly employees of the Employer Respondents support the making of the authorisation in support of bargaining for a multi-enterprise agreement. For the reasons given earlier, the extent to which the petition of employees is of any probative value is to be seriously doubted. That said I am prepared to assume that the employees who signed the petition support the United Voice application for a low-paid bargaining authorisation, albeit that I cannot be satisfied that they understood what that entailed. The employees who were called to give evidence by United Voice in support of the application showed variable levels of understanding, as is evident in the cross examination, of the purpose and effect of an authorisation or of multi-enterprise bargaining.

[117] I also note that no employee from Secom Security was called to give evidence. The Respondent Employers submitted that I should draw an inference that Secom Security employees are not supportive of the application for a low-paid bargaining authorisation. I am not prepared to draw such an inference particularly as Mr Gillani, the Human Resources Manager of Secom Security, did not assert that to be the case. The closest he came was the suggestion that “Secom ACT employees had never expressed any interest in bargaining with Secom ACT” 133 and that he was not aware of any of these employees being members of United Voice.134

[118] On the whole I am inclined to the view, at a very general level, that a not insignificant number of employees the subject of this application support United Voice’s application for a low-paid bargaining authorisation. The strength and level of that support amongst employees is not known. It must be borne in mind that very recently a significant number of employees of MSS Security voted to approve a single-interest enterprise agreement, 135 although I note that the vote was undertaken in an environment where United Voice supported the approval.136 Beyond the very general level, the evidence would not allow me to move.

[119] In the circumstances of this case I regard this consideration as neutral.

s.243(3)(d) - the extent to which the terms and conditions of employment of the employees who will be covered by the agreement is controlled, directed or influenced by a person other than the employer, or employers, who will be covered by the agreement

[120] United Voice submitted that as the security industry in the ACT in which the Respondent Employers operate is a competitive contract industry, the terms and conditions of the employment of the employees the subject of this application are influenced by the client, relevantly government clients. 137 It submitted that the value for money principal which underpins government procurement results in a determination of the successful contractor to be predominantly reliant on price.138 It relied on the following evidence given by Professor Robyn Hardy, a retired public servant and currently Adjunct Professor at the University of Canberra with substantial experience in government procurement139 and Peter Georgiou, the ACT Branch Manager of SNP,140to make good its propositions:

[121] United Voice also pointed to some of the evidence given by witnesses for the Respondent Employers which it was suggested was to the effect that it is not easy to pass on increases in costs to clients and so increases in costs of operations will need to be absorbed by the Respondent Employers. 142

[122] In essence United Voice submitted that the application of the value for money principal by government in the procurement of security services in a locality such as the ACT, where government has an effective monopoly on the procurement of security services amounts to an influence on the terms and conditions of the employees the subject of this application for the purposes of this consideration. 143

[123] The Respondent Employers submitted that simply because government clients pay a fee for services and undertake a tender process in order to obtain security services does not mean that government directs, controls, or influences the terms and conditions of employment of the employees the subject of this application. 144 The Respondent Employers also relied on correspondence from the Honourable Senator Abetz in which the Senator indicated that the Commonwealth does not exercise control over the terms and conditions of the relevant employees.145 I have found it unnecessary to have regard to the correspondence. No witness called by the Respondent Employers suggested that government exercised any degree of control or influence or directed the Respondent Employers as to the terms and conditions of employment of the employees.

[124] There is in my view little doubt that government exercises price pressure on those wishing to tender for government work. This is not only proper but something that would be expected of government decisions, which involve the expenditure of taxpayer funds. But that fact alone is not a sufficient basis to conclude that the government or government agencies, which procure security services, control, direct or influence the terms and conditions of employment of the employees of those from whose services are procured. The government’s role in procuring certain security services through a competitive tendering process is not the same as its role in the provision of funding, as in the Aged Care case.

[125] Furthermore there is no evidence that the government through its procurement processes or the contracts that arise requires particular terms and conditions of employment or standards of employment to be met, other than perhaps ensuring compliance with legal obligations. No evidence was led about the particular terms and conditions of the contractual arrangements governing the services provided by the Respondent Employers or how such terms have the capacity to control, direct or influence terms and conditions of employment of employees performing those services.

[126] I am not prepared to assume without more that a competitive tendering process, even in a market where the dominant player is government, results in control, direction or influence over terms of conditions of employment. More importantly even if such an assumption would be made, without more, it is not possible to determine the extent of the control, direction or influence, or of its impact upon the actual wages and conditions of the employees concerned.

[127] In the circumstances of this case this consideration does not weigh in favour of an authorisation being granted.

s.243(3)(e) - the extent to which the applicant for the authorisation is prepared to consider and respond reasonably to claims, or responses to claims, that may be made by a particular employer named in the application, if that employer later proposes to bargain for an agreement that:

[128] United Voice submits that it is prepared to consider all claims and that it will bargain in good faith. United Voice also submitted that it will consider all and any claims put by the Respondent Employers whether individually or as a collective. 146 There is some evidence that United Voice is prepared to do so which can be reference to its conduct in bargaining with MSS Security. That said, as I indicated earlier in these reasons, the evidence given by Ms Ryan is suggestive of a campaign by United Voice in the ACT over some significant period to engage in multi-enterprise bargaining. This does not fill me with confidence that United Voice would readily consider proposals from particular Respondent Employers that would result in a single-interest enterprise agreement.

[129] However, for present purposes, I am prepared to accept that United Voice will, if an authorisation is granted, behave in the manner suggested by this consideration. Therefore in the circumstances this consideration weighs in favour of the grant of an authorisation.

Conclusion

[130] Having taken into account each of the matters set out in ss.243(2) and (3) I am not satisfied that it is in the public interest to make the authorisation sought by United Voice. Neither party advanced any other ground on which it might be said that the public interest is enlivened so as to compel the making of a low-paid authorisation. Although I have concluded that some of the employees the subject of this application are low-paid a case has not been made out that the employees have either not had access to collective bargaining or that they face substantial difficulty bargaining at the enterprise level. For the reasons given earlier, the preponderance of the matters of which account must be taken weigh against making the authorisation sought by United Voice. Some of the considerations are neutral and those few that weigh in favour are not so significant as to result in an authorisation being warranted, much less mandated, in the public interest.

[131] It seems to me that the application is premature in that there exist opportunities to continue to bargain collectively with MSS Security and Secom Security, and real efforts to bargain with the other Respondent Employers have not been made. Moreover the case for authorisation made out by United Voice was weak. That the explanatory memorandum to the Fair Work Bill 2008 cites the security industry, amongst others, as an example of the industries to which the low-paid bargaining provisions might be directed does not mean that a low-paid bargaining authorisation will be made in a given case. The statutory criteria must still be met. For the reasons given earlier the evidence led by United Voice in support of its application and that specifically directed to the considerations to which I must have regard fell well short of a persuasive case.

[132] I have little doubt that bargaining in the security industry in the ACT is difficult. But as the evidence in this case discloses single interest enterprise bargaining with the individual Respondent Employers is both possible and available to United Voice and the employees the subject of this application.

[133] For completeness I would observe that s.243(1) compels the making of a low-paid authorisation if I am satisfied that it is in the public interest to make the authorisation taking into account the matters in ss.243(2) and (3). It seems to me arguable on the face of s.243 that I am not precluded from making an authorisation if the public interest test is not satisfied but as the point was not argued before me it is not appropriate that I express a concluded view.

[134] The application for a low-paid authorisation is dismissed. An order giving effect to this decision is issued separately in PR555981.


DEPUTY PRESIDENT

Appearances:

E. Cresshull and S. Russell-Uren for United Voice

T. McDonald for the Respondents

Hearing details:

Canberra

2014

19, 20, 21, 22 May

15 July

Final written submissions:

United Voice 13 June 2014

Respondents 27 June 2014

 1   The employers listed in appendix A to the amended application dated 28 April 2014 are: MSS Security Pty Limited, Wilson Security Pty Limited, The Trustee for the Secom Australia (ACT) Unit Trust , Secom Australia Pty Limited and Sydney Night Patrol and Inquiry Co Pty Ltd

 2   Referred to in s.242 as a “multi-enterprise agreement”

 3   [2011] FWAFB 2633

 4   Ibid at [11]

 5   See s.229(2)

 6   See s.246(2); c/f s.240

 7   See s.260; the Commission is empowered to arbitrate a dispute about a proposed enterprise agreement by consent under s.240, however this does not result in a binding workplace determination and there is a serious question whether the outcome of a consent arbitration under s.240(4) must be replicated or included in a proposed agreement.

 8   See s.262

 9   See s.238

 10   See ss.260(3), 260(5) and 264(4)

 11   See s.437(2)

 12   [2011] FWAFB 2633 at [14] – [15]

 13   [2013] FWC 511

 14   Ibid at [17]

 15   See s.284

 16   See for example Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452

 17   See Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 687

 18   [2013] FWC 511 at [19]

 19   [2011] FWAFB 2633 at [17]

 20   [2010] FWAFB 4000

 21   Ibid at [237]

 22   [2013] FWCFB 4000

 23   Ibid at [362]

 24   [2014] FWCFB 3500

 25   Ibid at [310] - [321]

 26   United Voice Outline of submissions at [9]

 27   Ibid at [10]

 28   Ibid at [16] – [19]

 29   Transcript PN 4445

 30   Ibid

 31   Respondents' Outline of submissions at [26]

 32   Ibid and respondents’ Outline of final submissions at [37] – [41]

 33   [2014] FWCFB 3500 at [316]

 34   See ABS - Data Set 6306.0 – Employee Earnings and Hours, Australia, May 2012

 35   United Voice Final submissions at [2.1]

 36   The security officers who gave evidence were Lisiate Lupeitu’u (Wilson Security) [Exhibit UV 1, Transcript PN 29 – PN 363], David Sankey (MSS Security) [Exhibit UV 2, Transcript PN 369 – PN 591], Sami Abs (SNP Security) [Exhibit UV 3, Transcript PN 593 – PN 722], Adrian McClusky (SNP Security) [Exhibit UV 4, Transcript PN 733 – PN 797, Jeremy Stewart (SNP Security) [Exhibit UV 5, Transcript PN 820 – PN 909], Daniel Finley (MSS Security) [Exhibit UV 6, Transcript PN 910 – PN 978], Trevor Bennett (SNP Security) [Exhibit UV 7, Transcript PN 979 – PN 1057], Lorenzo D’Alessandro (SNP Security) [Exhibit UV 8, Transcript PN 1062 – PN 1179] and Jason MacDonald (Wilson Security) [Exhibit UV 9, Transcript PN 1187 – PN 1295]

 37   See for example Exhibit UV 7

 38   See for example Exhibit UV 1

 39   See for example Exhibit UV 8

 40   See transcript PN 627 – PN 628

 41   See Exhibit UV 2

 42   See transcript PN 1192

 43   See transcript PN171, PN398, PN931, PN1025 and PN1234

 44   Exhibit UV 10

 45   [2014] FWCFB 3500 at [553]

 46   See exhibit UV21

 47   100 members were invited to participate with 21 responding to the survey. The respondents were employed in the ACT as security offices in both the private and public sectors – UV 21 at 16

 48   Exhibit UV 21 at page 3

 49   Ibid

 50   Transcript PN 3984 – 3986

 51   Respondents’ Outline of final submissions at [47]

 52   See transcript PN 2506, PN 3275 – PN 3277 and PN 4391

 53   Transcript PN 4334 – PN 4337

 54   Transcript PN 3512 – PN 3517

 55   Transcript PN 3277 – PN 3278

 56   Transcript PN 4338 – PN 4339

 57   ABS – 6310.0

 58   ABS – 6306.0 – Employee Earnings and Hours, Australia, May 2012 - Summary (this is the latest data concerning this subject available and was be published on 21 January 2013)

 59   Ibid at p 14 – 15

 60   Ibid

 61  Ibid at p 8

 62   Ibid

 63   Respondents’ Outline of final submissions at [48]

 64   Ibid at [48] – [49]

 65   See s.241(a)

 66   See s.241(b)

 67   See s.241(c)

 68   See s.241(d)

 69   United Voice Outline of submissions at [23]

 70   Ibid at [23] – [26]

 71   Ibid at [27]

 72   Exhibit R6 at [4] and Annexure B at clause 1.3.2

 73   Exhibit R6 at the supplementary statement of Gillani and Attachment A

 74   Transcript PN 2075

 75   Exhibit R3 at [8] and Attachment A thereto

 76   Ibid at [10]; see clarification of dates in Attachment D thereto

 77   Ibid at [13] and Attachment D thereto

 78   Attachment D to Exhibit R3 at [26] – [27]

 79   Transcript PN 2322 – PN 2334; Exhibit UV 12 at [32]

 80   Exhibit R4 at [40] – [41]

 81   Exhibit R7 at [18]

 82   Exhibit UV 12 at [19] and Attachment B thereto

 83   Exhibit UV 12 at [14], [16] – [22]

 84   Exhibit R7 at [12] – [13]

 85   Exhibit UV 10

 86   Exhibit UV 9 at [9]

 87   Exhibit UV 1 at [11]

 88   Ibid at [12]

 89   See Exhibit UV 12 at [19]

 90   See in addition Exhibit R 10 at [4] – [5]

 91   Exhibit R 10 at [6]

 92   Exhibit UV 3 at [10]

 93   Exhibit UV 8 at [11]

 94   Exhibit UV 7 at [7]

 95   Exhibit UV 5 at [10]

 96   See Exhibit UV 12 at [19]

 97   Final submissions of United Voice at pp 3-4

 98   Transcript PN 2074 – PN 2075

 99   Transcript PN 2110

 100   Transcript PN 2039 – PN 2042

 101   See United Voice Outline of submissions at [33] – [34]; Exhibit UV 12 at [3] – [4]; Outline of submissions of Respondents at [50] – [54] and Respondent’s Outline of final submissions at [82] – [87]

 102   Exhibit UV 12

 103   United Voice Outline of submissions at [34]

 104   Exhibit UV 12

 105   Exhibit R6 at [4] and Annexure B at clause 1.3.2

 106   Exhibit R6 at the supplementary statement of Gillani and Attachment A

 107   Final submissions of United Voice at [4.1]

 108   Ibid at [4.3] – [4.4]

 109  Ibid at [4.7] – [4.8]

 110   United Voice outline of submissions at [42] – [43] and Exhibit UV 21

 111   [2013] FWC 511 at [127]

 112   Final submissions of United Voice at [5.1] – [5.2]

 113   s.63

 114   s.64

 115   Respondents’ Outline of final submissions at [100]

 116   Ibid at [102]

 117   United Voice Outline of submissions at [47]

 118   Respondents’ Outline of final submissions at [102] – [105]

 119   The security officers who gave evidence were Lisiate Lupeitu’u (Wilson Security) [exhibit U V1, transcript PN 29 – PN 363], David Sankey (MSS Security) [exhibit UV 2, transcript PN 369 – PN 591], Sami Abs (SNP Security) [exhibit UV 3, the transcripts PN 593 – PN 722], Adrian McClusky (SNP Security) [exhibit UV 4, transcript PN 733 – PN 797, Jeremy Stewart (SNP Security) [exhibit UV 5, transcript PN 820 – PN 909], Daniel Finley (MSS Security) [exhibit UV 6, transcript PN 910 – PN 978], Trevor Bennett (SNP Security) [exhibit UV 7, transcript PN 979 – PN 1057], Lorenzo D’Alessandro (SNP Security) [exhibit UV 8, transcript PN 1062 – PN 1179] and Jason MacDonald (Wilson Security) [exhibit UV 9, transcript PN 1187 – PN 1295]

 120   Respondents’ Outline of final submissions at [113]

 121   United Voice Outline of submissions at [52]

 122   Ibid at [53]

 123   Ibid at [54]; Exhibit UV 12 at [50]

 124   Exhibit UV 12 at [51]

 125   United Voice Outline of submissions at [55] – [56]

 126   Ibid at [57]

 127   Exhibit R4 at [60]

 128   Ibid

 129   Ibid

 130   Ibid at [40]

 131   Listiate Lupeitu’s (Wilson Security) [exhibit UV 1, transcript PN 29 – PN 363], David Sankey (MSS Security) [exhibit UV 2, transcript PN 369 – PN 591], Sami Abs (SNP Security) [exhibit UV 3, the transcripts PN 593 – PN 722], Adrian McClusky (SNP Security) [exhibit UV 4, transcript PN 733 – PN 797, Jeremy Stewart (SNP Security) [exhibit UV 5, transcript PN 820 – PN 909], Daniel Finlay (MSS Security) [exhibit UV 6, transcript PN 910 – PN 978], Trevor Bennett (SNP Security) [exhibit UV 7, transcript PN 979 – PN 1057], Lorenzo D’Alessandro (SNP Security) [exhibit UV 8, transcript PN 1062 – PN 1179] and Jason MacDonald (Wilson Security) [exhibit UV 9, transcript PN 1187 – PN 1295]

 132   Exhibit UV10

 133   Exhibit R6 at [16]

 134   Ibid at [15]

 135   Transcript PN 2114

 136   Ibid

 137   United Voice Outline of submissions at [61]

 138   Final submissions of United Voice at [7.1]

 139   Exhibit UV 11

 140   Exhibit R 10

 141   Final submissions of United Voice at [7.1] - [7.3]

 142   UV referred to the evidence at transcript PN 2964- PN 2965 and PN 2524 – PN 2535

 143   Final submissions of United Voice at [7.9]

 144   Respondents Outline of final submissions at [143]

 145   Exhibit R5

 146   United Voice Outline of submissions at [66]

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