1
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:
. . . the employers listed in Appendix ‘A’1 [of the amended application] and their employees performing
work described and classified in Schedule C – Classifications, in the Security Services Industry Award
2010, regardless of whether they are currently covered by that modern award or not, may bargain for the
proposed multi-enterprise agreement.
. . . 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
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
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DECISION
E AUSTRALIA FairWork Commission
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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:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith,
particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and
(b) to enable FWC to facilitate good faith bargaining and the making of enterprise agreements,
including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request assistance; and
(iii) ensuring that applications to FWC for approval of enterprise agreements are dealt with
without delay.
[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:
241 Objects of this Division
The objects of this Division are:
(a) to assist and encourage low-paid employees and their employers, who have not historically had the
benefits of collective bargaining, to make an enterprise agreement that meets their needs; and
(b) to assist low-paid employees and their employers to identify improvements to productivity and
service delivery through bargaining for an enterprise agreement that covers 2 or more employers, while
taking into account the specific needs of individual enterprises; and
(c) to address constraints on the ability of low-paid employees and their employers to bargain at the
enterprise level, including constraints relating to a lack of skills, resources, bargaining strength or
previous bargaining experience; and
(d) to enable FWC to provide assistance to low-paid employees and their employers to facilitate
bargaining for enterprise agreements.
Note: A low-paid workplace determination may be made in specified circumstances under
Division 2 of Part 2-5 if the bargaining representatives for a proposed enterprise agreement in
relation to which a low-paid authorisation is in operation are unable to reach agreement.
[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
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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:
When the provisions as a whole are considered, it is apparent that the legislative policy underlying the
low-paid authorisation provisions is that while bargaining on a single enterprise basis is the preferred
approach, multi-enterprise bargaining is permitted “to assist and encourage low-paid employees ... to
make an enterprise agreement that meets their needs”. The other provisions of Division 9 set out the
means by which these objects are to be carried into effect. In particular, s.243 specifies the matters
which the tribunal is to take into account in dealing with an application under s.242.4
[8] The persons having standing to make an application are set out in section 242(1) of the
Act as follows:
(1) The following persons may apply to the FWC for an authorisation (a low-paid authorisation )
under section 243 in relation to a proposed multi-enterprise agreement:
(a) a bargaining representative for the agreement;
(b) an employee organisation that is entitled to represent the industrial interests of an
employee in relation to work to be performed under the agreement.
Note: The effect of a low-paid authorisation is that the employers specified in it are subject to
certain rules in relation to the agreement that would not otherwise apply (such as in relation to the
availability of bargaining orders, see subsection 229(2)).
[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:
243 When FWC must make a low-paid authorisation
Low-paid authorisation
(1) FWC must make a low-paid authorisation in relation to a proposed multi-enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) FWC is satisfied that it is in the public interest to make the authorisation, taking into
account the matters specified in subsections (2) and (3).
FWC must take into account historical and current matters relating to collective bargaining
(2) In deciding whether or not to make the authorisation, FWC must take into account the following:
(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;
(b) the history of bargaining in the industry in which the employees who will be covered by the
agreement work;
(c) the relative bargaining strength of the employers and employees who will be covered by the
agreement;
2 Referred to in s.242 as a “multi-enterprise agreement”
3 [2011] FWAFB 2633
4 Ibid at [11]
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(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;
(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.
FWC must take into account matters relating to the likely success of collective bargaining
(3) In deciding whether or not to make the authorisation, FWC must also take into account the
following:
(a) whether granting the authorisation would assist in identifying improvements to productivity
and service delivery at the enterprises to which the agreement relates;
(b) the extent to which the likely number of bargaining representatives for the agreement would
be consistent with a manageable collective bargaining process;
(c) the views of the employers and employees who will be covered by the agreement;
(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, that will be covered by the agreement;
(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:
(i) would cover that employer; and
(ii) would not cover the other employers specified in the application.
[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
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
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[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 agreement9. 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:
Some initial observations should be made about the nature of the public interest test. The controlling
criterion is satisfaction in the public interest. That criterion is a broad one and is confined only by the
limits of the scope and purpose of the Act, as the following passage from the decision of the High Court
of Australia in O’Sullivan v Farrer indicates:
“[T]he expression “in the public interest”, when used in a statute, classically imports a
discretionary value judgment to be made by reference to undefined factual matters, confined
only “in so far as the subject matter and the scope and purpose of the statutory enactments may
enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature
could have had in view”“ (references omitted).
While the tribunal is required to take into account the matters specified in ss.243(2) and (3) in applying
the public interest criterion, we do not think it was intended that those matters are the only ones capable
of being relevant to the public interest. Other matters potentially affecting the public interest can also be
taken into account. The public interest is distinguishable from the interests of the parties, although it is
clear from the matters specified that there is a substantial overlap where these provisions are
concerned.12 [Endnote omitted]
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]
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[16] To this his Honour Vice President Watson, in Australian Nursing Federation v IPN
Medical Centres Pty Limited and Others13, (Practice Nurses case) added:
It will be seen that the task of determining whether to make a low-paid authorisation is based on a broad
discretionary test described as the Commission being satisfied that it is in the public interest to make the
determination. The specific factors required to be taken into account and the objects and scheme of the
legislation are the key considerations in applying this test.14
[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
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
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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 2009–1020 decision, the Expert panel said, about the
meaning and identification of low-paid employees, the following:
There is no consensus among the parties and other commentators with respect to a definition of the low
paid. Because there is a continuous distribution of wages, there is no wage threshold just below which
people are clearly low paid and just above which people are clearly not low paid. Rather, the lower the
wage, the more “low paid” is the employee. People earning above or near median earnings are clearly
not low paid in an absolute sense. In considering relative living standards and the needs of the low paid,
we have focussed mainly on those receiving less than two-thirds of median adult ordinary-time earnings
(currently about $700 per week) and its equivalent hourly rate (about $18.50). We have also had regard
in particular to those paid at the C10 rate, in recognition of past practice, on the C14 rate, which is
equivalent to the minimum wage, and on those whose full-time equivalent wages put them in the bottom
quintile of the wage distribution. Employees on award wages that are above these rates can be
considered to be low paid in a different sense. The comparison here is between the award rate and the
bargained rate for similar work.21
[23] In the Annual Wage Review 2012–13 decision22 the Expert Panel observed the
following about the meaning and identification of low-paid employees:
There is a level of support for the proposition that the low paid are those employees who earn less than
two-thirds of median full-time wages. This group was the focus of many of the submissions. The Panel
has addressed this issue previously in considering the needs of the low paid, and has paid particular
regard to those receiving less than two-thirds of median adult ordinary-time earnings and to those paid
at or below the C10 rate in the Manufacturing Award. Nothing put in these proceedings has persuaded
us to depart from this approach.23 [Endnotes omitted]
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]
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[24] In the Annual Wage Review 2013–14 decision24 the Expert Panel again considered the
meaning and identification of low-paid employees and said:
[310] . . . we remain of the view stated by the Panel in the 2012–13 Review decision that a threshold of
two-thirds of median full-time wages provides a suitable and operational benchmark for identifying who
is low paid. Submissions on this topic mostly supported, and utilised, this benchmark.
[311] The Australian Government provided two definitions of low paid. The first is “less than two-
thirds of median hourly earnings (including those on junior rates)”, as measured by the EEH data—a
figure of $17.35 per hour. The second defines low pay as equal to or less than two-thirds of median
hourly earnings in their main job, using Household Income and Labour Dynamics in Australia (HILDA)
Survey data for 2012—a figure of $17.60 for adults. Both the Australian Government figures are lower
than the more usual measure of two-thirds of median adult ordinary time earnings ($18.60 in May 2012,
as calculated by the ACTU from the EEH data), or between $19.17 (on the assumption of a 40 hour
week) and $20.18 (on the assumption of a 38 hour week), based on the median earnings data for August
2012 contained in Table 8.1 of the Statistical Report—Annual Wage Review 2013–14 (Statistical
Report).
[312] On the basis of the EEH data and their threshold of $17.35, the Australian Government estimated
that there were around 1 058 000 low-paid employees in mid-2012. The survey found that 461 900 of
the low paid were award-reliant employees, 292 600 employees were on individual arrangements and
303 500 employees were on collective agreements. Of these, an estimated 104 000 (1.1 per cent of all
employees) were paid the NMW. They also provided a chart that showed that 1 544 100 employees
were award reliant in 2012. These two sets of information imply that 30 per cent of award-reliant
employees were low paid.
[313] The Australian Government also used HILDA data to identify the extent and nature of the low-
paid workforce. Using the adult low-paid threshold of $19.00 per hour (based on median earnings as
reported in the Statistical Report for this Review, Table 8.1), the Australian Government estimates that
there were about 2.0 million low-paid employees in 2012, comprising 22.7 per cent of all employees,
38.7 per cent of whom were aged under 25. The higher number reflects the use of a higher value for
median earnings (one which includes only adults in its estimation).
[314] ACCI argued that “[m]any award-reliant employees may not be low paid, although the data is
mixed”. ACCI referred to the ACTU submission to the 2012–13 Review which used unpublished EEH
data to show that just over 50 per cent of award-reliant employees earn more than the C10 rate. ACCI
submitted that the C8 rate should be used as a proxy for two-thirds of median full-time earnings, and
this leads to a proportion of low-paid award-reliant employees of just over 40 per cent.
[315] Using unpublished data from the EEH survey and imputing classifications based on average
hourly ordinary time cash earnings, the ACTU matched the EEH data to classifications and wage rates
in the Manufacturing and Associated Industries and Occupations Award 2010 to provide a distribution
of award-reliant employees. They concluded that just under half of award-reliant workers are employed
at or below the C10 level, with a clustering around the C10 to C12 level. On their calculations, these
workers earned below two-thirds of the median hourly ordinary time cash earnings of non-managerial
adult employees. Their estimates included juniors, apprentices and those on a supported wage.
[316] While there is widespread agreement that “less than two-thirds of the median” is a good working
definition of being low paid, it is clear that the practical application of this measure is not
straightforward. First, the surveys that provide the 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 (and hence the calculation of two-thirds of these values).
To illustrate this point, Table 6.1 contains estimates of two-thirds of median weekly earnings based on
data from the two main ABS surveys of the distribution of earnings, the Employee Earnings, Benefits
and Trade Union Membership (EEBTUM) and the EEH.
Table 6.1: Two-thirds of median weekly earnings
Year EEBTUM EEH
2008 $666.67 $705.33
2009 $666.67 n/a
24 [2014] FWCFB 3500
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2010 $700.00 $743.33
2011 $733.33 n/a
2012 $766.67 $808.00
Note: Weekly earnings from the EEBTUM survey are earnings in the main job for full-time employees.
The figure is for August of each year. Weekly earnings from the EEH survey are weekly total cash
earnings for full-time non-managerial employees. The figures for 2008 are for August and for 2010 and
2012 for May.
n/a = not available.
Source: ABS, employee Earnings, Benefits and Trade Union Membership, Australia, various, Catalogue
No. 6310.0; ABS, Employee Earnings and Hours, Australia, various, Catalogue No. 6306.0.
[317] On this data, two-thirds of median full-time wages differs by about 6 per cent, or $41 on the most
recent measures, even when provided by the same (high quality) statistical agency. On both measures,
the value of two-thirds of median earnings was above the C8 rate at the relevant time. We note that two-
thirds of AWOTE equated to approximately the C3 rate in May 2012.
[318] The calculation of the median will also be affected by whether or not juniors are included in the
population from which the median is derived.
[319] Research Report 6/2013 found that around 75 per cent of adult award-reliant employees in the
non-public sector were found to be on the equivalent of the C10 rate of $18.60 per hour or below.
[320] Whilst caution is required in drawing conclusions as to the precise extent of low pay among the
award reliant, the ACTU’s analysis based on unpublished EEH data, the Research Report 6/2013 and
the estimates of the Australian Government all suggest that a sizeable proportion—perhaps half—of
employees who are award reliant are also low paid. Many of these are people under the age of 21.
[321] The definition of low paid by reference to employees on award wages that are below two-thirds of
median adult ordinary-time earnings excludes a substantial proportion of workers who are paid at the
higher levels of award rates.25 [Endnotes omitted]
[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
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
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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 affected33.
[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
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]
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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 earnings34 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
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
[2014] FWC 6441
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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 petition44 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:
If the surveys of members are to be relied upon to support exceptional circumstances in an industry,
they would need to be conducted with the rigour, and the disclosure of the detailed methodology and
parameters.45
[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
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
[2014] FWC 6441
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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 unaffected50, 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
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
[2014] FWC 6441
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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 Statistics58. 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–
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
[2014] FWC 6441
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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 $41,97460 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 week62. 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 Award63. 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.
60 Ibid
61Ibid at p 8
62 Ibid
63 Respondents’ Outline of final submissions at [48]
64 Ibid at [48] – [49]
[2014] FWC 6441
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[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
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]
[2014] FWC 6441
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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:
70 Ibid at [23] – [26]
71 Ibid at [27]
[2014] FWC 6441
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(a) Secom Security
Employees of Secom Security are covered by Secom Security Employee Collective
Agreement 2009–2014, the nominal expiry date of which has only recently passed
on 30 May 2014;72
Secom Security has proposed a further enterprise agreement in relation to which it
sought approval from employees and in relation to which there had been bargaining
beginning in November 2012 through to August 2013 at which United Voice was
represented and involved in bargaining discussions; the proposed agreement is a
national agreement and there seems to be a dispute or disagreement between the
National Office and the ACT branch of United Voice; bargaining is being supervised
by the Commission pursuant to a bargaining dispute notified to the Commission by
United Voice on 5 May 201473.
[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
Employees of MSS Security are covered by the Chubb Protective Services and
Liquor, Hospitality and Miscellaneous Union, Australian Capital Territory Security
Employees Certified Agreement 2004. As is evident this is a transitional instrument
which has long passed its nominal expiry date;75
In late 2010 MSS Security agreed, following an approach from United Voice, to
commence bargaining a new enterprise agreement and subsequently issued to
employees who would be covered by the proposed agreement a Notice of Employee
Representational Rights in or about November 2010;76
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
[2014] FWC 6441
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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
The proposed agreement was ultimately not approved by the Commission because
the Commission was not satisfied that the agreement passed the better off overall
test;79
Neither United Voice nor MSS security employees have taken any further step since
the Commission’s decision not to approve the proposed agreement to bargain with
MSS Security for a single-employer enterprise agreement.80
[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
The terms and conditions of employment of security employees employed by Wilson
Security in the ACT are determined by the Security Award;81
In or about September 2010 United Voice (then known as Liquor, Hospitality and
Miscellaneous Union (LHMU)), corresponded with Wilson Security in the ACT
along with the other Respondent Employers in pro forma style setting out a proposal
to negotiate a collective agreement;82
It seems clear that the correspondence together with the discussions that occurred
with Wilson Security and other Respondent Employers in or about April 2011 was
part of a campaign by United Voice to secure “an industry-wide agreement”;83
Wilson Security is bound by a number of collective agreements operating in various
states including agreements covering work performed at sites controlled by
Commonwealth government entities;84
Apart from the assertions that “we have faced substantial difficulty trying to bargain
in the past” and “we have very little bargaining power to try to negotiate an
enterprise agreement” as set out in the pro forma questionnaires completed by
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]
[2014] FWC 6441
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persons purporting to be employed by Wilson Security85 there is no evidence of
either;
The evidence given by Mr MacDonald as Security supervisor employed by Wilson
Security was that it was difficult to bargain “as rates are set before staff start at a
job” because of the price determined by the contract for the provision of security
services.86 Mr Macdonald’s evidence did not address the question of whether he or
his colleagues at Wilson Security did not have access to collective bargaining or
faced substantial difficulty in bargaining at the enterprise level. Mr Lupeitu’u’s
evidence was that “it is difficult to bargain with our employers”87 which says nothing
about access to collective bargaining or any identifiable substantial difficulties. Like
Mr McDonald, Mr Lupeitu’u’s evidence asserted that contractual conditions under
which security services are provided make bargaining for higher wages difficult.88
[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
Evidence of the kind summarised in the first, second, third and fifth dot points under
the Wilson security heading above was also given in relation to SNP;90
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
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]
[2014] FWC 6441
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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
It seems to me as though the only bargaining that’s going on seems to be at Secom and you’re opposing
it happening in the ACT?---Look, I would like you to look at the Secom agreement. You would disagree
with it, as well.
But Secom were seeking to bargain with its employees in the ACT, including you, and you’re seeking
to stop that; but then you’re coming along and saying, “Oh, isn’t it terrible that there isn’t enterprise
bargaining in the ACT”?---No-one has ever come to us with an enterprise agreement that would lift
wages and improve productivity. That hasn’t been put to us. If Secom or any other company came to us
with a proposition that actually lifted wages and improved productivity, then we would certainly put
that to our members. The only bargaining, if you like, that has taken place, is one to the employees’
disadvantage.98
. . .
That’s the effect of your application, isn’t it? To the extent that enterprise bargaining has occurred on a
single basis in the ACT, if you’re successful you’ll be able to stamp it out?---I think to characterise it as
stamping it out is not the case. If we were able to successfully bargain individually with employers to
lift wages, then we would do that. It’s just that we haven’t been able to do that and we haven’t been able
to do it, you know, in any - you know, in any form of agreement that we’ve put to them, we haven’t
been able to lift the wages.99
. . .
Is it fair to say that you found the biggest barrier to you being able to get your industrywide campaign
up is that the employers who are subject to the low-paid authorisation in your claims aren’t prepared to
agree to them?---No, they wouldn’t even respond to them. The first difficulty is that we couldn’t get
them to respond to them and then the second difficulty is that when we did try and negotiate a single-
enterprise agreement with MSS, their best offer couldn’t meet the BOOT.
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
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You just couldn’t get any agreement for a multi-employer agreement from any of the companies that
you sought it with?---That’s right. Well, they wouldn’t respond.
You couldn’t even get a response to the - - -?---We couldn’t get a response.
I suppose if you’re not getting a response to your multi-employer bargaining proposal, it’s hard to have
any negotiations?---There was the multi-employer proposal that I had discussions with and got some
early feedback to say, “We don’t want a multi-employer agreement,” so then we proposed a single
template agreement and we couldn’t get any response to that, and then later on following a dispute that
we had with MSS, MSS proposed a single agreement and we negotiated that. It took months and months
to try and negotiate; and then we went to put it through the Commission and then that became quite a
complicated exercise, and so that failed, as well.100
[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.
100 Transcript PN 2039 – PN 2042
[2014] FWC 6441
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[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 Ryan102 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:
Many attempts at bargaining have been made by United voice with the Respondent
Employers but without success;
The Respondent Employers are reluctant to bargain because they perceive higher
wages would make them non-competitive;
One of the employer respondents (MSS security) has attempted to bargain with
United voice in the ACT but the resultant proposed agreement was not approved by
the Commission;
Security guards in the ACT remain low-paid.103
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]
[2014] FWC 6441
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[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
thereto104 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
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
[2014] FWC 6441
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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 skilled108 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
107 Final submissions of United Voice at [4.1]
108 Ibid at [4.3] – [4.4]
[2014] FWC 6441
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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.
109Ibid at [4.7] – [4.8]
[2014] FWC 6441
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[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 submission110 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
110 United Voice outline of submissions at [42] – [43] and Exhibit UV 21
111 [2013] FWC511 at [127]
112 Final submissions of United Voice at [5.1] – [5.2]
[2014] FWC 6441
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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:
21.1 Ordinary hours and roster cycles
(a) The ordinary hours of work are 38 hours per week or, where the employer chooses to operate a
roster, an average of 38 hours per week to be worked on one of the following bases at the discretion of
the employer:
(i) 76 hours within a roster cycle not exceeding two weeks;
(ii) 114 hours within a roster cycle not exceeding three weeks;
(iii) 152 hours within a roster cycle not exceeding four weeks; or
(iv) 304 hours within a roster cycle not exceeding eight weeks.
[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
113 s.63
114 s.64
115 Respondents’ Outline of final submissions at [100]
[2014] FWC 6441
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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.
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]
[2014] FWC 6441
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[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:
We believe that if our application is successful we will be able to develop through bargaining, and
through dialogue with clients if necessary, a number of measures to increase productivity and
professionalism in the industry.124
[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
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]
[2014] FWC 6441
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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.
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]
[2014] FWC 6441
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[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 it131 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.
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
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[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:
7.1 The value for money principle controls government procurement. United Voice submits that the
evidence shows that value for money principle creates a confected style of competition which does not
mirror the free market:
Professor Hardy:
Is this different from how it would work in the private sector?---In the private sector they would tend
not to tender, they are not compelled to tender. They would often probably ring around for a couple of
quotations, that's maybe how they would do it, they might also have a set of criteria against which they
would seek quotations, depending on the size of the service required. But in all probability they just
would seek quotations on price. PN 1433
7.2 When the principle is applied in service tenders to distinguish between companies of the same size,
experience and knowledge the focus is placed on price (see PN1506).
Professor Hardy:
Can I ask you just in terms of your long experience in government tenders, are you aware of any
security contract that hasn't been awarded to the lowest price tenderer?---Not a security, but certainly
of other tenders. PN 1505
If it's the case that [two] companies get seven out of 10 in the first process, and one company is say 10
per cent cheaper on price, in all likelihood that company is going to win the contract?---Absolutely. PN
1506
Peter Georgiou:
Would you accept this process puts downwards pressure on the price which you can tender for?---I'm
not sure if it would put the process but what I can tell you is that probably the trend for the last several
years has been that tenders are being won based on price, not necessarily in one's ability, one's
reference. But most contracts are won based on price. PN 4379
7.3 Government is the largest industry in the ACT so the value for money principle controls the
preponderance of the market.
Professor Hardy:
Do you think the tender system results in government, be it the state government or ACT government or
the Commonwealth, essentially controlling the wages of these types of contract workers?---Not directly,
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
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but indirectly perhaps. In places where there are large government establishments and a security
requirement, it would be that the market can be set of course by very large clients always. Certainly
governments tend to be very large clients for these kinds of services, and they are the ones who are
commonly seeking tenders. If in Canberra we had other kinds of industries requiring security it might
be different, but in Canberra, for instance, the largest industry is government, the second-largest is
construction. So in that it is the largest client, it perhaps does that indirectly. PN1439141
[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
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
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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:
(i) would cover that employer; and
(ii) would not cover the other employers named in the application
[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
146 United Voice Outline of submissions at [66]
[2014] FWC 6441
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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
AR WORK WORK COMMISSION THE FAIR SEAL OF THE
[2014] FWC 6441
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Final written submissions:
United Voice 13 June 2014
Respondents 27 June 2014
Printed by authority of the Commonwealth Government Printer
Price code G, PR555489
