Compass Group (Australia) Pty Ltd; Compass Group Remote Hospitality Services Pty Ltd T/A ESS Support Services Worldwide

[2013] FWC 3160

[2013] FWC 3160

The attached document replaces the document previously issued with the above code on 21 May 2013.

Correction to Pub Code only.

Carolyn Jurott

Associate to Deputy President Asbury

Dated 28 May 2013

[2013] FWC 3160

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Compass Group (Australia) Pty Ltd; Compass Group Remote Hospitality Services Pty Ltd T/A ESS Support Services Worldwide
(AG2013/624)

DEPUTY PRESIDENT ASBURY BRISBANE, 21 MAY 2013

Application for approval of the Compass Group (ESS Remote - Queensland) Enterprise Agreement.

BACKGROUND

[1] In a Decision released on 16 May 2013 I approved the Compass Group (ESS Remote - Queensland) Enterprise Agreement 2013 1and indicated that I would give reasons for approving the Agreement in a further decision. The application for approval of the Agreement was opposed by United Voice. My reasons for approving the Agreement are set out below.

[2] The application for approval of the Agreement was made by Compass (Australia) Pty Ltd (Compass) and states that the Australian Workers’ Union of Employees Queensland (AWU) and United Voice were bargaining representatives for the Agreement. In the Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement filed with the application, the National Workplace Relations Manager for Compass, Ms Catherine Anne Holmes, declares that the requirements under the Act for approval of the Agreement have been met.

[3] Each of the Unions filed a Form F18 Declaration of Employee Organisation in relation to an application for Approval of Enterprise Agreement. The declaration filed by the AWU states that the AWU supports the approval of the Agreement; agrees with the Declaration made on behalf of Compass and wants to be covered by the Agreement.

[4] The Declaration made by United Voice states that United Voice does not support the approval of the Agreement on a number of grounds; disagrees with the Declaration made on behalf of Compass and does not want to be covered by the Agreement. Essentially United Voice contends that the Agreement was not properly made in accordance with Act, and that the Agreement does not pass the Better Off Overall Test (BOOT).

[5] The application was listed for hearing, and Directions were issued requiring United Voice to provide submissions and statements of evidence in support of its contentions in relation to why the Agreement should not be approved by the Commission.

THE APPLICATION

[6] In the Form F17 filed with the application for approval of the Agreement, Ms Holmes details the steps taken by the Company in relation to seeking approval of the Agreement, and states that:

● Each employee has a “Pay Global Self Service” account (PGSS) from which they access and print their payslips.
● A general communication was issued 13 February 2013 (Qld ESS EA Communication - Comm #3) advising employees that the Agreement had been uploaded onto their PGSS accounts, that information sessions would be held and that the voting period for the Agreement would commence on 25 February 2012.
● That communication was also emailed to employees, posted on site notice boards and its contents were conveyed to employees during toolbox meetings conducted between 14 and 17 February 2013.
● Comm #3 indicates that the voting period for the Agreement would commence at 7.00 am on Monday 23 February 2013 and conclude at 5.00 pm on 1 March 2013. It further indicates that voting would be conducted by online secret ballot where required and that specific details of the voting process would be provided before the commencement of the voting period.
● The Agreement and the National Employment Standards were made available to employees on their individual PGSS accounts on 15 February 2013.
● A Power Point presentation was prepared to explain the terms of the Agreement. Site managers were taken through the presentation during the week of 11 February 2013 and then briefed employees in the period between 14 February and the first day of the ballot on 25 February 2013.
● The Power Point presentation was posted on employees’ PGSS accounts and copies were available at site on request.
● Further site-specific information about the effect of the terms of the Agreement was provided on request in response to questions from employees about matters relating to their roster patterns.
● On 20 February 2013 Qld ESS EA Communication - Comm 4 was issued setting out answers to frequently asked questions, and reiterating that voting would be conducted electronically between 25 February and 5.00 pm on 1 March 2013.
● On 22 February 2013 further instructions on how to vote were issued to employees in the form of a communication (Qld ESS EA Communication - Comm #5) explaining that at the commencement of the voting period a web site link would be emailed to employees so that they could cast their votes electronically.
● Employees were further informed in Comm #5 that if they had not provided an email address, they could request their site manager to provide them with a ballot paper.
● Comm #5 contained an error in that it stated that the ballot would close at 4.00 pm on Friday 1 March 2013 rather than the 5.00 pm deadline which had previously been advised in Comm #3 and Comm #4.

[7] The Communications referred to by Ms Holmes were appended to the Declaration.

[8] Ms Holmes states that the last notice of employee representational rights as required by s.181(2) was provided on 18 January 2013 and that voting commenced on 25 February 2013. The Agreement was made on 1 March 2013. Of the 1445 employees who will be covered by the Agreement, 532 cast a valid vote, and 315 voted to approve the Agreement.

[9] Ms Holmes further states that the Agreement passes the better off overall test (BOOT) when considered against the Hospitality Industry (General) Award 2010 including transitional provisions.

UNITED VOICE SUBMISSIONS

[10] The submissions of United Voice in opposition to the approval of the Agreement related to a number of issues which can be summarised as follows:

● Deficiencies with the on-line voting system;
● The failure of Compass to take reasonable steps during the access period to inform relevant employees about the content of the Agreement;
● Pressure placed on employees by management to vote to approve the Agreement;
● Insufficient contingency plans to cater for difficulties with the electronic voting system or employees required to submit a paper ballot;
● Inconsistent information in communications from Compass about the closing time for the ballot; and
● The Agreement does not pass the BOOT.

[11] United Voice submitted that it became aware, through email communications from members who are to be covered by the Agreement, that there were serious defects in the ballot process for approval of the Agreement.

[12] The ballot process for approval of the Agreement was conducted through an on line voting system known as “Surveymonkey”. This relied on a hyperlink sent to employees via email, which they could then use to access the Surveymonkey system. According to the submission of United Voice, some employees did not receive the email with the hyperlink, and some employees, upon accessing the system, received a message stating that they had already voted, which was not the case.

[13] In support of these contentions United Voice tendered emails from members containing allegations which can be summarised as follows:

● 28 April stating that a lot of people had not received the email with the link to the Surveymonkey site and that Compass was telling them to do a paper vote.
● 1 March 2013 stating that due to the office not being organised with a handwritten paper vote a few people had not voted at all.
● 2 March 2013 stating that the member went online to vote and was told that a vote had already been cast.
● 4 March 2013 stating that the member had trouble with the website and was unable to vote properly.
● 5 March stating that most of the crew on a particular project have voted “no” or did not receive the email with the link to the Surveymonkey site.
● 5 March stating that another member found the handwritten paper vote to be “of poor quality”, lots of people did not receive the vote, the Surveymonkey website was not user friendly and the member voted three times without confirmation of any vote.
● 5 March stating that the member had trouble voting.
● 12 March stating that the member was told by a fellow worker that she did not receive an email and was told that it was too late when she informed the office at Eureka
● 12 March 2013 stating that the member believes that the ballot was not conducted transparently and properly, the voting procedure was not explained, people in charge of the ballot were not aware of procedures and the ballot paper was not confidential.

[14] United Voice submitted that as a result of these matters, the Agreement was not properly made in accordance with s.182 of the Act. It was also submitted that there were insufficient contingency plans to cope with difficulties with the Surveymonkey system or employees required to submit a paper ballot. In this regard, paper ballots were only distributed to employees without email addresses recorded on file. Completed paper ballots were required to be handed to the relevant site manager or scanned and emailed to HR. Employees who did not have an email address would have had difficulty scanning and emailing a ballot paper if they wished to keep it confidential and there was no ability for postal ballots to be cast.

[15] Employees who were unable to access or vote via the Surveymonkey site would not be entitled to a paper ballot, as they did have an email address recorded. It was submitted that it is quite conceivable that a number of employees were either denied the opportunity to vote or were dissuaded from voting because of the limitations imposed.

[16] United Voice also tendered emails from members said to support the contention that Compass did not take reasonable steps to explain the terms of the Agreement. These can be summarised as follows:

● 4 March 2013 stating that manager did regular sessions with staff about the agreement but was not able to answer questions and referred staff to HR to get them answered.
● 5 March 2013 stating that he or she was not properly informed about how to raise concerns prior to voting.
● 5 March 2013 stating inability to have input into agreement and that management were not able to answer a lot of questions around % pay rise, hours for hospitality staff, hump days, working 21 days straight and legalities around this. Staff were referred to HR to get answers but when HR came to site he was only there to support management.
● 5 March 2013 stating that he or she was not asked to provide input on concerns during the negotiation phase and was only provided with information on the proposed agreement and its content days prior to voting.
● 12 March 2013 complaining that workers were never given the opportunity to meet together to discuss Agreement without management.

[17] United Voice submitted that these emails established that the explanation of the terms of the Agreement provided by the employer was not beneficial. In this regard it was asserted that reports from members established that opportunities to ask questions in relation to the proposed agreement were limited and that employees were directed to the HR office in Brisbane for further elaboration about the contents of the Agreement. The Company’s HR office operates during ordinary business hours and given that a number employees work irregular hours, it was not feasible for them to contact HR.

[18] In relation to the assertion that a member of management was placing pressure on employees to vote “yes”, United Voice tendered two emails which can be summarised as follows:

● 28 March 2012 stating that Simon Francis from HR is walking around to every staff member trying to win a yes vote and asking if whether he is allowed to do that, to which a response was forwarded that said: “Yes they are allowed to do that”.
● 5 March 2013 stating that on Friday Simon Francis from HR was walking around trying to convince people to vote yes and that employees had heard that if the vote was not a resounding yes, the project manager would be very annoyed.
● 5 March 2013 stating that the member was under the impression from management that voting “no” would not make a difference; nothing would be improved or corrected without employees’ votes; and joining a union was a bad decision because they were there to make a profit and not to help employees.

[19] When Compass objected to these emails being tendered on the basis that the employees who sent them were not identified, Mr Peverill on behalf of United Voice indicated that further evidence from the persons who sent the emails could be provided if required by the Commission.

[20] United Voice also pointed to the communications from Compass in relation to the closing time for the ballot contained inconsistent information as to the closing time of the ballot with one communication stating that the ballot closed at 4.00 pm when in fact it closed at 5.00 pm. While the ballot may have closed at 5.00 pm, it is possible that some employees were dissuaded from voting because of a mistaken belief that the ballot had already closed.

[21] In relation to the BOOT, United Voice submitted that clause 29 of the Hospitality Industry Award 2010 (the Award) indicates the manner in which ordinary hours of work may be averaged. A large number of employees covered by the Agreement work a roster involving 21 days on and 7 days off whereby 10 hours are worked each day. United Voice submitted that such an arrangement falls outside of the scope of clause 29 of the Award.

[22] United Voice also pointed to clause 24 of the Agreement which provides that ordinary hours of work are 38 per week averaged over a 12 month period. It was submitted that the 21/7 roster was maintained over a 12 month period, then the average hours would be 52.5 per week including rest and recreation days. Such an averaging provision is contrary to the Award and the National Employment Standards.

[23] While the Agreement provides for an annualised salary arrangement, which on its face may exceed the Award, United Voice contends that by reference to the hours of work provisions under the Award, the salary is insufficient to compensate. Given that the hours of work are far in excess of those in the Award and the NES, the annualised salary should far exceed the Award.

[24] United Voice submitted that the shift penalties in the Agreement are to be phased out over its life, and that while this is in line with the Award, there are no pay increases contained in the Agreement other than those provided for in the minimum wage review. A letter was appended to the Form F18 submitted by United Voice which was forwarded to Compass on 14 March 2013 setting out the concerns ventilated at the hearing in relation to approval of the Agreement.

AWU SUBMISSIONS

[25] Mr McKernan on behalf of the AWU submitted that the Agreement passes the BOOT, and that there were no major issues with the voting process. The AWU received one report of a person having problems voting, and it not inconceivable that this was a technical glitch. The time frame for voting was sufficient. The AWU had regular contact with Ms Holmes throughout the pre-approval process, and a number of issues raised by the Union were incorporated into the Agreement.

[26] The AWU ran a “no” campaign but this related to the base rate, rather than whether the Agreement passed the BOOT. The annualised salary is not uncommon in the industry in which the employer operates, and the AWU had no issue with the manner of calculating the salary under the Agreement.

COMPASS SUBMISSIONS

[27] Ms Holmes on behalf of Compass submitted in response to the contention that the Agreement does not pass the BOOT, that clause 29.8 of the Award deals with catering in remote locations, and provides for an employer servicing clients in such locations, to schedule work over consecutively recurring cycles, followed by consecutive non-working days. That clause provides that the total ordinary hours of work during a cycle will not exceed 40 hours, multiplied by the number of working and non-working weeks in the cycle, with overtime rates being payable for time in excess of eight hours per day or in excess of the number of working and non-working weeks multiplied by 40.

[28] Ms Holmes also submitted that such work cycles generally apply only to employees living in camp accommodation, and not to local employees. Further, Ms Holmes submitted that these averaging provisions did not result in employees not being better off overall under the Agreement.

[29] In relation to the approval of the Agreement, Ms Holmes contended that employees were given an opportunity to vote by an electronic method and an alternative paper based method and that this was consistent with the requirements of the Act. There is no absolute obligation placed upon the employer to ensure that each employee has the same opportunity to vote and any employee who had difficulty was given a postal vote on request. There was no evidence that any employee who approached a manager before the close of the ballot and reported difficulty in casting a voted, was refused a ballot paper.

[30] Ms Holmes also submitted that the fact that only one third of the workforce voted, is not evidence that two thirds of the workforce were not given an opportunity to vote or could not vote. The Agreement provides for a minimum in terms of rates and conditions, and many employees of Compass are on annualised salaries that are in excess of the minimum so that the Agreement would have no immediate effect.

[31] In relation to the voting method adopted by Compass, Ms Holmes said that the Company has some 55 sites across Queensland and the Agreement covers 1,455 employees. Surveymonkey was chosen on the basis of the large number of sites, the remoteness and the fact that some employees would be rostered off during the week when the ballot took place. Where employees reported problems with Surveymonkey they were provided with a paper ballot, and over 100 employees voted in this way.

[32] In response to the submission that employees felt concerned about scanning and emailing a ballot paper because of lack of anonymity, Ms Holmes submitted that there is no requirement for anonymity with respect to ballots for approval of enterprise agreements, and the same argument could be advanced in relation to a ballot by show of hands. Ms Holmes also contended that there was no evidence that employees were under duress when casting a vote, or that they did not cast a vote because of the error in the communication to the effect that the ballot closed at 4.00 pm rather than 5.00 pm on 1 March 2013. Ms Holmes further submitted that the correct time at which the ballot was to close was set out in #Comm 2 issued on 7 February 2013, #Comm 3 issued on 13 February 2013 and #Comm 4 issued on 20 February 2013.

[33] Compass objected to the emails tendered by United Voice on the basis that they do not constitute proper evidence that could be tested by cross-examination. It was submitted that it was open for United Voice to bring evidence in the form of witness statements so that the persons who made the statements could be cross-examined and consideration given to circumstances such as the sites they worked on, to enable Compass to call evidence in response. Further, Ms Holmes pointed to the fact that all but one of the emails appeared to be correspondence between an Organiser of United Voice who was running an active “No” campaign, and members of the Union. The Union did not raise any concerns with the ballot process until after the ballot closed, when a letter was forwarded to Compass on 14 March 2013.

[34] Ms Holmes submitted that in circumstances where United Voice was running a campaign of opposition to employees approving the Agreement and had an Organiser actively engaged in that campaign, it would be expected that any issue with the ballot would have been raised at the time it occurred.

CONCLUSIONS

Was the Agreement genuinely agreed to by employees?

[35] By virtue of s.188 of the Act, an enterprise Agreement has been genuinely agreed to by employees if the Commission is satisfied of the matters set out in that section - compliance with the requirements in s.180(2), s.180(3) s.180(5) and s.181(2).

[36] In relation to s.180(2) I am satisfied that the employer has taken all reasonable steps to ensure that employees were given a copy of the written text of the Agreement and material incorporated in the Agreement. I accept the uncontested evidence set out in the Form F17 Declaration made by Ms Holmes and filed with the Agreement, to the effect that Employees were provided with a copy of the Agreement and the National Employment Standards, by means of these documents being uploaded onto their individual electronic Pay Global Self Service account.

[37] I also accept Ms Holmes’ statement that in addition to the electronic versions of the Agreement and material referenced in it, there were paper copies available for employees who wished to access the Agreement and the National Employment Standards in that format. I also note that employees received regular communications from Compass to inform them of the processes relating to the approval of the Agreement, and setting out how they might access information.

[38] Ms Holmes’ uncontested evidence is that the electronic means of providing information is used by Compass to give employees access to their payslips. Given the requirements of the Act with respect to the provision of payslips, and the absence of any evidence to the contrary from United Voice, I accept that this was an appropriate means of providing the required information to employees.

[39] I also accept that Compass has taken all reasonable steps to notify employees of the time and place at which the vote would occur, and the method of voting, as required by s.180(3) of the Act. There are numerous written communications appended to the Declaration made by Ms Holmes in support of the approval of the Agreement, setting out the time frame over which the ballot would be conducted and the method of voting.

[40] The error in advising employees that the ballot would close at 4.00 pm rather than 5.00 pm on 1 March 2013 was an insignificant error and there is no evidence that this error had any material effect on the outcome of the ballot. This can be contrasted with the circumstances in MSS Security Pty Ltd  2 where information was provided to employees, which would reasonably have caused them to believe that the ballot closed one month later than the actual concluding date, and the outcome was so close that the employees who provided evidence to the Commission in that case about being unable to vote, could have altered the outcome by voting against the Agreement.

[41] I am satisfied that the terms of the agreement were explained to employees. There is evidence of written communication, a “Power Point” presentation delivered by managers at various locations where employees were employed and opportunity for employees to ask questions about the Agreement. The fact that some site managers may have been unable to answer questions about the Agreement, and referred employees who asked questions to the Company’s HR team, is perfectly reasonable and is not a basis for finding that an explanation of the terms of the Agreement was not provided to employees.

[42] As a Full Bench of the Commission stated in McDonalds Pty Ltd v SDAE  3 the test is not an absolute requirement to ensure that certain outcomes are achieved, and the section requires only that employers take reasonable steps to explain the terms of the Agreement. The Full Bench also held in that case, that while the employer is required to take reasonable steps to provide an explanation of the terms of an agreement prior to asking employees to vote to approve it, that explanation may continue throughout the approval process.

[43] In my view, the steps taken by Compass to explain the terms of the Agreement were more than reasonable, particularly given the size of the Company, the number of employees concerned and their geographic locations. There is no evidence that there was anything novel or unusual in the terms of the Agreement. It is also the case that a significant number of employees are engaged on the basis of annualised salaries and would not have been significantly impacted by the Agreement in any event.

[44] It is not in dispute that Compass complied with s.181(2) of the Act and that employees were not requested to approve the Agreement until 21 days after the last notice of representational rights was given under s.173(1). Section 181(3) of the Act specifically provides that the employer may request employees to approve an agreement by an electronic method, and the use of the Surveymonkey system is not, of itself, a matter that could form the basis of a refusal to approve the Agreement.

[45] The Agreement was made in accordance with subsection 182(1) and was made when the majority of employees who cast a valid vote, approved the Agreement. It is the case that only 532 of the 1455 employees covered by the Agreement voted in the ballot, and that 315 employees voted to approve the Agreement. However, it is not compulsory for employees to vote in a ballot for approval of an enterprise agreement, and it is not a requirement for approval by the Commission that the majority of employees who will be covered by an agreement approve its terms. In the circumstances of this case, the proportion of employees who voted is not a basis for finding that the Agreement was not genuinely approved.

[46] The Commission must be satisfied in relation to the matters in s.186 and s.187 (which in turn refers to s.188), and can require no more of an applicant for approval of an agreement than to establish a basis for the Commission to be satisfied about those matters. Once that requirement is met, the Commission does not have discretion to refuse to approve an agreement and must approve an agreement, unless there are other reasonable grounds for believing that the agreement has not been genuinely approved by the employees.

[47] United Voice was given a reasonable opportunity to place evidence to support its contentions that the Agreement was not properly made, before the Commission. The Agreement was lodged with the Commission on 15 March 2013. Directions were issued to allow United Voice to provide submissions and statements of evidence in relation to why the Agreement was not properly made or did not pass the BOOT as asserted by United Voice in its Form F18 Declaration. The application for approval of the Agreement was heard on 5 April 2013.

[48] The evidence of United Voice amounts to some fourteen emails from persons whose names were redacted. In circumstances where United Voice was on notice that the hearing was an opportunity to present evidence to support its contentions, there is no basis to provide the Union with a further opportunity to provide witness statements from the authors of the emails.

[49] Compass made the application and attended the hearing to respond to the case put forward by United Voice. In light of the lack of evidence advanced by United Voice it was reasonable for Compass to decide not to call evidence and to rely on the statement of Ms Holmes. In the face of clear and cogent evidence advanced by Compass in its Form F17 Declaration in support of approval of the Agreement, setting out steps taken to comply with the requirements for approval of the Agreement, I am unable to accept that the relatively small number of emails from unidentified persons, can provide reasonable grounds for a conclusion that the agreement has not been genuinely approved by employees or that it was not properly made.

[50] It is also apparent that the emails were generated after the ballot for approval of the Agreement had closed, and in response to an email from an Organiser of the Union informing members that Compass had advised that a majority of employees who cast a valid vote had approved the Agreement. If the difficulties in voting described in the emails were widespread to the extent that the outcome of the ballot would have been affected, it is improbable that employees would have waited until the ballot had concluded to advise United Voice of those difficulties. It is also unclear why United Voice waited until 14 days after the close of the ballot to inform Compass of its problems with the approval process.

[51] Accordingly, there is insufficient evidence upon which I could be satisfied that there are other reasonable grounds for believing that the Agreement was not genuinely approved.

[52] There is also no basis upon which I could find that the Agreement does not pass the better off overall test. For the purposes of applying the better off overall test, the terms of the Agreement are compared with the terms of the Award at the test time as prescribed by s.193 of the Act. The Hospitality Award 2010 has transitional schedules which provide for changes to penalty rates in circumstances where pre-reform awards provided for higher or lower penalty rates. Because the better off overall test is applied to both current and prospective award covered employees, it is necessary to consider the terms of the Agreement against any prescribed changes to Award terms and conditions that are provided for in the transitional schedules in the Award and which will occur while the Agreement is in operation.

[53] The wage rates in the Agreement exceed both the transitional rates and the full rates in the Hospitality Award 2010. The Agreement provides that the base hourly rates of pay will increase by the same percentage and at the same time, as any increase in Award minimum wage rates ordered by the Commission as a result of an Annual Wage Review that is concluded prior to the nominal expiry date of the Agreement. By virtue of s.206 of the Act, while the Agreement applies to employees, the base rate in the Agreement cannot be less than the base rate that would be payable to employees if the Award applied. The wage rates in the Agreement and the mechanisms by which they will increase, do not cause the Agreement to fail the better off overall test.

[54] With respect to penalty payments, the early and late work penalty payments in the Agreement are the same as those in the Award, and are not the transitional amounts. Other penalty payments in the Agreement are reduced in line with the transitional provisions in Schedule A of the Award.

[55] In my view, if increases in penalty rates in transitional schedules which occur during the term of an agreement are taken into consideration in applying the better off overall test, then the converse applies. Compass is entitled to phase in reductions in penalty rates in accordance with the transitional schedules in the Hospitality Industry Award 2010. The Agreement does not fail the better off overall test because it provides for reductions in penalty payments in line with the reductions provided for in the transitional schedules in the Award.

[56] The Award provides for work cycles, and the terms of the Agreement in relation to hours of work for “work cycle employees” are in virtually identical terms to those in the Award, except that the Agreement provides that the total number of ordinary hours in a work cycle roster will not exceed 38 hours multiplied by the number of working and non-working weeks in the cycle, while the Award provides for a multiplier of 40 hours. The terms of the Agreement are more beneficial than those in the Award in relation to this matter and I am unable to accept the submission that the hours of work provisions in the Agreement cause it to fail the better off overall test.

[57] The submission of United Voice in relation to the hours of work provisions in the Agreement does not have regard to clause 29.8 of the Award and that the Award allows for hours to be averaged across working and non-working weeks in a work cycle.

[58] I am also unable to accept that the fact that the Agreement provides for an annualised salary, causes it to fail the better off overall test. Clause 19.4 of the Agreement provides that the annualised salary must not be less than all of the amounts payable to the employee under the Agreement, for working the particular work cycle. Given that the Agreement passes the better off overall test, an annualised salary that exceeds the amounts that an employee would be paid under the Agreement for working the same work cycle, does not cause it to fail that test. An employee who is paid an annualised salary is still covered by the Agreement and that salary is calculated by reference to its terms, including any increases to base rates.

[59] Compass has complied with all requirements necessary for approval, and the Agreement includes all mandatory provisions. By virtue of s.186 the Commission is required to approve the Agreement. Accordingly, a decision approving the Agreement was issued on 17 May 2013.

DEPUTY PRESIDENT

Appearances:

Ms C. Holmes and Ms S. Francis on behalf of Compass Group.

Mr D. Peverill and Mr D. Davie on behalf of United Voice.

Mr T. McKernan on behalf of the Australian Workers’ Union.

Hearing details:

2013.

Brisbane:

April 5.

 1   [2013] FWCA 3127.

 2   [2010] FWA 3687.

 3   [2010] FWAFB 4602 at [29] - [31].

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