The applicant applied for an enterprise order under s 42I of the Industrial Relations Act 1979 (WA). The application was made because the respondent declined to bargain for an industrial agreement with the Trust, which was establishing a new security services business in Western Australia called Applied Security Force.

The applicant sought the enterprise order to gain flexibilities unavailable under the Security Officers’ Award. Specifically, it aimed to “flatten out” pay rates, reduce administrative burdens, and enhance competitiveness in tendering. The applicant proposed higher base rates in exchange for reduced overtime and penalty rates. However, the respondent opposed the application.

The key issue was whether the Trust qualified as an ‘employer’ when it gave notice to initiate bargaining. The definition of ‘employer’ in the Act was central to this dispute. The applicant argued that having written employment contracts and employing Mr Kourtesis satisfied the definition, while the respondent contended that active engagement of employees in substantive work was essential.

Senior Commissioner Cosentino ultimately decided not to issue an enterprise order. The decision rested on the finding that the Trust was not an ‘employer’ at the relevant time. The evidence did not establish that the Trust had employed Mr Kourtesis, and the employment contracts lacked clarity, creating uncertainty and incompleteness.

Furthermore, Senior Commissioner Cosentino assessed the Trust’s interests and needs for the enterprise order. The Trust’s justifications related to flexibility, confidence in forecasting labour costs, and competition were found to be inadequately supported. There was no evidence that the proposed order would improve productivity or efficiency. Senior Commissioner Cosentino also considered the interests of employees, finding that the proposed order did not guarantee better take-home pay, lacked transparency, and did not provide fair compensation for unsociable hours.

In summary, Senior Commissioner Cosentino dismissed the application for an enterprise order, emphasising the applicant’s failure to meet the statutory criteria and insufficient evidence supporting its claims.

The decision can be read here.