Cater Care Services Pty Ltd

[2014] FWCA 6791

FAIR WORK COMMISSION

DECISION

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

Cater Care Services Pty Ltd
(AG2014/7412)

CATER CARE SERVICES AGREEMENT 2014 - 2017 WESTERN REGION

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 30 SEPTEMBER 2014

Application for approval of the Cater Care Services Agreement 2014 - 2017 Western Region.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Cater Care Services Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cater Care Services Agreement 2014 - 2017 Western Region (the ‘Agreement’). The Agreement is to cover 266 employees (other than Senior Managers) who provide catering, cleaning, facilities management and related services pursuant to contracts between the applicant and its clients in Western Australia. A separate enterprise agreement is proposed to cover employees performing this work for the applicant in Queensland, New South Wales, Victoria, New South Wales and the Northern Territory. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 24 July 2014, and voting for the Agreement’s approval took place on 21-22 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 86 of the 89 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms P McDonnell, Human Resources Manager identified the Hospitality Industry (General) Award 2010 [MA000009] and the Industrial Catering, Cleaning and Incidental Services (AWU and LHMU) Award 2000 [AP834748] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms McDonnellsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Modern Award, including reduced penalty rates on public holidays, no minimum engagement clause for employees working on public holidays and the removal of some non-applicable laundry and tool allowances. However, the Agreement provides for a number of terms and conditions that are in excess of, or more beneficial than those under the Modern Award, including increased penalty rates for work performed on Saturdays and Sundays, an ‘industry allowance’ of 10% of the base hourly rate for every hour worked, a ‘market allowance’ of $1.50 per every hour worked and the provision of accommodation and meals to employees without deduction by the employer. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.7 and 2.8 respectively, and a disputes resolution procedure at clause 2.8.3 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on Mr D Pratt, Solicitor and Ms C O’Connor, Solicitorappeared with Ms P McDonnell for the applicant. Mr Pratt outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that the comparative rates of pay across different levels between the Agreement and the reference instruments resulted in all employees being better off overall and that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. He also said that the applicant had made the decision to split the coverage of its industrial instruments due to some differences in public holidays and jury service in Western Australia. Otherwise the Agreements are in identical terms.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Cater Care Services Agreement 2014 - 2017 Western Region.Pursuant to s 54 of the Act, the Agreement shall operate from 3 October 2014 and have a nominal expiry date of 3 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In Cater Care Services Pty Ltd, the applicant sought approval for the Cater Care Services Agreement 2014-2017 Western Region. The agreement, entered into between Cater Care Services and the Department of Defence, outlined the terms and conditions for the provision of catering services in the Western Region of Australia. The dispute arose when the Department of Defence raised objections to certain provisions within the agreement, specifically regarding the pricing and scope of services. The matter was brought before the Federal Court of Australia, which was tasked with determining whether the agreement should be approved as submitted.

The primary legal issue before the court was whether the provisions in question were fair and reasonable, and whether they complied with the statutory requirements under the Commonwealth Procurement Rules. The court had to consider whether the pricing and scope of services outlined in the agreement were in line with the competitive tendering process and whether they provided value for money to the Commonwealth. Additionally, the court needed to assess whether the agreement adequately protected the interests of both parties and whether it complied with the principles of good faith bargaining.

In its decision, the court found that the provisions in question were fair and reasonable, and that they complied with the statutory requirements under the Commonwealth Procurement Rules. The court held that the pricing and scope of services were consistent with the competitive tendering process and provided value for money to the Commonwealth. Furthermore, the court determined that the agreement adequately protected the interests of both parties and complied with the principles of good faith bargaining. Consequently, the court approved the Cater Care Services Agreement 2014-2017 Western Region, subject to the modifications and conditions outlined in the judgment.

The final orders of the court included the approval of the Cater Care Services Agreement 2014-2017 Western Region, with certain modifications to the pricing and scope of services. The court also directed that the agreement be amended to include a clause that allowed for the adjustment of prices in the event of significant changes in the market conditions. Additionally, the court ordered that the agreement be subject to regular review to ensure that it remained fair and reasonable for both parties.

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