Akbar Enterprises Pty Ltd [2017] FWC 5629

1 Fair Work Act 2009 s.185—Enterprise agreement Akbar Enterprises Pty Ltd (AG2017/2617) COMMISSIONER MCKINNON MELBOURNE, 27 OCTOBER 2017 Application for approval of the ECS International Security & Investigations Enterprise Agreement 2017-2021. [1] Application has been made by Akbar Enterprises Pty Ltd under s.185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the ECS International Security & Investigations Enterprise Agreement 2017-2021 (the Agreement). The Agreement is intended to operate to the exclusion of the Security Services Industry Award 2010 (the modern award). [2] On an initial assessment of the Agreement, the Commission had concerns about whether the Agreement passed the better off overall test, having regard to terms in the Agreement dealing with hours of work, shift, weekend and public holiday penalties, overtime, allowances, minimum engagement periods, annual leave and leave loading, personal leave and compassionate leave. [3] These concerns were communicated to the Applicant and responses sought. On 7 September 2017, 4 October 2017 and 16 October 2017 the Applicant provided responses to the issues raised. 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.” Shift, weekend and public holiday penalties [5] The Agreement is silent on shift, weekend and public holiday penalties and instead provides loaded rates of pay. The loaded rates of pay do not appear to be sufficient to compensate for the loss of these penalties in a range of circumstances, including when employees work on nights, weekends and public holidays. [2017] FWC 5629 DECISION -- 1 of 2 -- [2017] FWC 5629 2 Overtime [6] The Agreement makes no provision for overtime penalties. The loaded rates of pay in the Agreement do not appear to be sufficient to compensate for the loss of overtime penalties. Allowances [7] The Agreement makes no provision for any payment of non-expense related allowances, which are said to be included in the loaded rates of pay. The loaded rates of pay do not appear to be sufficient to compensate for the loss of these allowances when compared to the modern award. Undertakings [8] The Applicant was given the opportunity to provide written undertakings to address concerns about whether the Agreement passed the better off overall test. A number of undertakings were provided. However, no undertakings were given in relation to the penalties and allowances issues identified above. In my view, even if they had been, the undertakings would have resulted in substantial changes to the Agreement and could not have been accepted under section 190 of the Act. [9] I am not satisfied that the agreement passes the better off overall test in accordance with s.186(2)(d) and s.193 of the Act. Accordingly, the Agreement cannot be approved. [10] The application is dismissed. COMMISSIONER Printed by authority of the Commonwealth Government Printer <Price code A, PR597222> -- 2 of 2 --