Fair Work Act 2009

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

Application for approval of the Evolution Security (NSW) Workplace Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Evolution Security (NSW) Workplace Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Evolution Security NSW Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 26 November 2012, by the Employer's representatives, reSolutions@Work Pty Ltd. The application included a purported Statutory Declaration of a Jason Boneham which was signed by a Vincent Johnston (the purported Declaration). The purported Declaration stated that the Agreement was made on 13 November 2013. Therefore the application appeared to have been made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 17 December 2012. However there was no appearance by or on behalf of the Employer despite arrangements being made for the Employer's representative, a Mr Brian Evans, to participate via telephone.

[4] On 19 February 2013, in the absence of any further pursuit of the application, my Associate sent the following communication to the Employer's representative:

Proceedings in this matter commenced on 17 December 2012, at which time there was no appearance by or on behalf of the applicant.

In view of the absence of any further pursuit of the application, the Commissioner advises that it may be disposed to dismissing the matter for want of prosecution, unless there is some timely activity undertaken in support of the application.

[5] On the same day, 19 February 2013, the following response was received from the Employer's representative:

I contacted you prior to Christmas and advised that I had secured a contract to work in Darwin. That is still the case.

With the roster of work now in place, I am available for a telephone conference every second Monday or Tuesday commencing on 4-5 Feb, then Fortnightly thereafter on 02 4934 6048. Alteratively,[sic] should the commissioner prefer a video conference, I will be happy to oblige on the same days and dates

I look forward to your possitive [sic] response

[6] On 19 March 2013, the matter was listed for a (second) Hearing on a day to accommodate the particular requirements of the Employer's representative. On this occasion Mr Evans appeared via telephone. During the proceedings held on 19 March, the Fair Work Commission (the Commission) identified various issues including; the irregularity associated with the purported Declaration; various other concerns related to the application documents; and concerns relating to the contents of certain terms contained in the Agreement.

[7] The Employer was invited to consider the various issues raised by the Commission and to respond in writing. The Employer's representative advised that he would discuss these issues with his client and provide some documentary response. The relevant extract form the transcript of proceedings is as follows:

THE COMMISSIONER: That's the - that's the - the principal concern is BOOT and, as I say, if that was addressed I think the other things are quite capable of being dealt with - some of them are just typos - - -

THE COMMISSIONER: - - - others are just tidying up exercises. Some of them actually - as I say, like, with the portable long service leave - well, I'd be jumping at tidying that up pretty quickly.

MR EVANS: I'll - well, what I'll do is once I get the transcript I'll talk to my client straight away. The first thing I want to get tidied up is this statutory declaration.

MR EVANS: And I will - I am conscious of the point you made about the BOOT and terms of that, and the no list disadvantage. That can be reworded to reflect what is actually happening at the present time. And so - once that is signed I will (indistinct) it straight away, but once I see the transcript I'll tidy up the other areas as well.

I have an analysis on the screen anyway of how the - how the loaded hourly rate works and it's a case of I'll forward that at the same time as I forward the other information.

THE COMMISSIONER: All right. Well, let's get the transcript. Use that as the referencing point for the various issues that have been raised and then, in due course, send the further material in. If it satisfies the concerns, then the next thing you'll get is the approval decision.

THE COMMISSIONER: If it doesn't satisfy the concerns then we might be back again looking at the issues.

THE COMMISSIONER: But let's hope it's the former not the latter.

MR EVANS: All right. Thanks, very much, Commissioner.

THE COMMISSIONER: All right. On that basis then the proceedings are now stand adjourned."

[8] On 10 April 2013, in the absence of any further pursuit of the application, my Associate sent the following communication to the Employer's representative:

I refer to the above mentioned matter that was last before Commissioner Cambridge on 19 March 2013.

The Commissioner was anticipating to receive some further material and undertakings from you in due course.

Can you please advise when the Commissioner can expect to receive this material?

[9] On 19 April 2013, the following response was received from the Employer's representative:

I anticipate having the information back from Evolution Security by the end of next week and if all correct, will forward it to you as soon as it is received.

[10] On 1 May 2013, in the absence of any further pursuit of the application, my relieving Associate sent the following communication to the Employer's representative:

Re: AG2012/13739 Application by Evolution Security NSW Pty Ltd

Could you please provide an update on the status of the above application. The last communication we received from you was on 19 April indicating that you anticipated having information from the company by the end of that week which you would pass on to us. We are still expecting further material and undertakings as outlined in the hearing of 19 March 2013.

[11] On 2 May 2013, in view of the delays associated with the matter, a Notice of Listing was sent to the parties advising that the application was listed for further Hearing today, 10 May 2013.

[12] On 8 May 2013, the following communication was received from the Employer's representative:

Firstly let me apologise for not responding to your earlier emails as they have only been forwarded to me in the past few days.

Secondly, following the telephone conference I communicated with the Company and explained what had occurred. As a result, I have recieved [sic] from then [sic] a new statutory declaration based on your concerns.

I have made the requisite changes to the proposed agreement which I have attached for your concideration [sic].

At the present time that company is operating with only two to three employees who are working as casuals between ten to fifteen hours per week until such time as the agreement is given consent by FWA. The employees are working on static work between the hours of 0600 and 1800 as and when required and working in conjunction with Tuggerah Security Pty Ltd.

Finaly, [sic] due to operation requirements in Darwin, I am unavailable for a conference or hearing this coming Friday. I am locked into continuous work until 1 June when I return to Newcastle when I will be available on 3rd & 4th June. I can be contacted direct at this email address which is a private one I use while working up here.

[13] On the same day, 8 May, my relieving Associate sent the following communication to the Employer's representative:

RE: Notice of Listing - AG2012/13739 - Application by Evolution Security NSW Pty Ltd

In view of the extensive changes that you now appear to wish to make, including provision of a new agreement document, and in view of your inability to attend the further scheduled hearing, which has been listed for Friday 10 May and also given the length of time this matter has been under consideration - a more efficient process for dealing with the proposed agreement and one which would not contravene subsection 190 (3)(b) of the Act has been suggested by the Commissioner.

This alternate process involves filing a Notice of Discontinuance of this application in anticipation of filing a fresh application.

The form F50 Notice of Discontinuance can be found on the Fair Work Commission website (www.fwc.gov.au).

Regrettably, In view of the time that has elapsed, the further hearing of the matter cannot be postponed.

[14] Later on that day, 8 May, the following communication was received from the Employer's representative:

_"Thank you for the feedback Mark, I will discuss this with our client this evening and respond to you in the morning.

[15] There has been no further communication received from the Employer's representative and there was no appearance by or on behalf of the Employer at the further Hearing held today, 10 May 2013. During the further Hearing I dismissed the application and this Decision is issued as confirmation of that determination.

[16] I have considered the contents of the "proposed agreement" document which was attached to the first communication from the Employer's representative received on 8 May 2013. The Commission is unable to approve an amended or altered agreement. The provisions of s.190 of the Act permit approval of an agreement with undertakings. In this instance no undertakings have been provided.

[17] In any event, the changes that have been incorporated into the "proposed agreement" document do not rectify the concerns raised regarding the requirement for the Agreement to pass the better off overall test. In simple terms, the "loaded" wage rates in the Agreement are not sufficiently in excess of the comparable rates in the relevant Modern Award to adequately compensate for the loss of additional rates and penalty payments applicable for work performed outside of the daily span of hours or on Saturdays and Sundays. Consequently I am not satisfied that the Agreement passes the better off overall test.

[18] Further, the application for approval of the Agreement has not been pursued with sufficient diligence. Therefore the application for approval is dismissed for want of prosecution and because the Agreement does not satisfy the legislative requirements for approval of enterprise agreements.

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