DECISION

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

Imperial Security Group T/A Imperial Security Group; Trademark Security Services; The Trademark Corporation
(AG2018/2372)

Application for approval of the Imperial Security Group Enterprise Agreement 2017.

[1] Application has been made by Imperial Security Group Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Imperial Security Group Enterprise Agreement 2017 (the Agreement). The Agreement excludes the Security Services Industry Award 2010 (the Award).

[2] Concerns arise in relation to the Agreement and whether the requirements of s.180 of the Act are met, including in relation to the better off overall test, including having regard to the Loaded Rates Decision. 1

[3] United Voice requested copies of the Form F16 and Form F17 filed in the matter on 11 June 2018. It submits that the Agreement does not pass the better off overall test.

[4] Section 193(1) of the Act provides as follows:

“193(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

[5] The Agreement contains rates of pay between 0% - 47.09% above the Award. Rates of pay are loaded having regard to the shift work and there are no separately payable penalties for overtime, weekend work or shift work. There is no provision of annual leave loading or a number of allowances in the Agreement. The period for averaging of hours, minimum engagement periods, maximum ordinary hours and breaks between shifts are detrimental to employees when compared to the Award. In my assessment, benefits provided by the Agreement are not sufficient to overcome these detriments to employees.

[6] Imperial has offered undertakings seeking to address the concerns identified in relation to the Agreement.

[7] I am not satisfied the Agreement passes the better off overall test in accordance with s.182(2)(d) and s.193 of the Act. While the undertakings assist in addressing the range of concerns identified, when viewed as a whole, they will also result in substantial change to the Agreement. Accordingly, the Agreement cannot be approved.

[8] The application is dismissed.

COMMISSIONER

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 1   [2018] FWCFB 3610, [115]