Compass Group Health Services Pty Ltd T/A Medirest

[2020] FWCA 2525

[2020] FWCA 2525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Compass Group Health Services Pty Ltd T/A Medirest
(AG2019/3487)

COMPASS GROUP (MEDIREST - UNIVERSITY OF CANBERRA HOSPITAL) ENTERPRISE AGREEMENT 2019

Health and welfare services
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 14 MAY 2020

Application for approval of the Compass Group (Medirest - University of Canberra Hospital) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Compass Group (Medirest – University of Canberra Hospital) Enterprise Agreement 2019 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers Compass Group Health Services Pty Ltd (Employer) and its employees employed to perform work at or in connection with the Employer’s hospitality and related services operations at the University of Canberra Hospital (excluding management employees who are not covered by an award).

[3] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[4] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[5] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[6] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met. As to the better off overall test (BOOT), I have not made any determination whether cleaners covered by the Agreement are covered by the Cleaning Services Award 2010 (Cleaning Award), as contended for by the UWU, or the Health Professionals and Support Services Award 2010, as contended for by the Employer. It is not necessary to determine that question because I am satisfied that the Agreement, considered together the with Undertakings, passes the BOOT, regardless of which one of these two awards covers the cleaners. In particular, I am satisfied that the range of monetary and other benefits and entitlements provided for employees and prospective employees in the Agreement will ensure that they remain better off overall than they would have been had the relevant modern award applied to them. My conclusion in this regard is consistent with the following submission advanced by United Voice in its F18 filed in connection with the application for approval of the Agreement:

“The agreement is still better off overall when compared against the correct modern awards.”

[7] The UWU raised three BOOT issues in its submissions dated 1 May 2020 in relation to the application for approval of the Agreement, its earlier submissions having been addressed by the Commission and the Employer:

● First, the UWU sought an undertaking that clause 4.12 of the Agreement, which defines the “Modern Award [to] mean [the] Hospitality Industry (General) Award 2010”, to read as follows:

“For cleaning employees Modern Award means Cleaning Services Award 2010. For all other employees Modern Award means Health Professionals and Support Services Award 2010.”

● Secondly, the UWU sought an undertaking concerning the provision of a disability allowance to cleaners equivalent to that set out in clause 17.2 of the Cleaning Award. That allowance is only payable in the following limited circumstances:

○ where an employee works for more than one hour in a place or places where the temperature is reduced by artificial means below zero degrees or to at least 46 degrees Celsius; or

○ where an employee is engaged in cleaning from a swing scaffold, boatswain’s chair or other similar device on the outside of multi-storied buildings.

● Thirdly, the UWU sought an undertaking to address the fact that the Agreement does not contain a leading hand allowance equivalent to that set out in clause 17.5 of the Cleaning Award. Clause 17.5 of the Cleaning Award provides that: “An employee placed in charge of other employees will be paid the following amounts in addition to their classification rate of pay …”.

[8] In response, the Employer submitted:

● As to the first issue, the cleaners covered by the Agreement are not covered by the Cleaning Award and, in any event, the coverage of an employee by a modern award is not determined by any consensus position reached by persons covered by an enterprise agreement.

● As to the second issue, an entitlement to the disability allowance would not realistically arise in a hospital cleaning environment nor are they contemplated in any future work at the facility covered by the Agreement.

● As to the third issue, cleaners engaged by the Employer to work at the facility covered by the Agreement are not required to perform leading hand duties. If a cleaner covered by the Agreement is working in the position of a Supervisor, they will be classified and paid under the Agreement as a Level 4 employee. The comparable classification under the Cleaning Award is Level 3.

[9] With respect to the first issue raised by the UWU, the question of award coverage is not determined by the terms of an enterprise agreement or any consensus position reached by persons covered by an enterprise agreement. It is a mixed question of fact and law. In addition, a modern award “does not apply to an employee in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment”. 1 Accordingly, even if the Cleaning Award covers cleaners covered by the Agreement, it will not apply to the cleaners during the operation of the Agreement. Furthermore, an undertaking may only be accepted by the Commission if it has a concern that an enterprise agreement does not meet the requirements set out in sections 186 and 187 of the Act.2 I do not have any such concerns in relation to the Agreement. For all these reasons, I have not requested the Employer to give an undertaking of the type suggested by the UWU and I am satisfied that the Agreement should be approved without such an undertaking being provided.

[10] With respect to the second and third issues raised by the UWU, I gave the UWU (and other bargaining representatives) an opportunity to file and serve witness statements, documents and submissions to contest the Employer’s submissions that an entitlement to the disability allowance or the leading hand allowance would not realistically arise in the circumstances pertaining to cleaners working at the University of Canberra Hospital. Neither the UWU nor any other bargaining representative took up that opportunity. In those circumstances, I accept the Employer’s submissions and therefore am satisfied that the absence of the disability allowance and/or the leading hand allowance from the Agreement does not give rise to any BOOT concerns in relation to the Agreement.

[11] The Health Services Union being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[12] The United Workers’ Union being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

[13] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 21 May 2020. The nominal expiry date of the Agreement is 20 May 2024.

DEPUTY PRESIDENT

Annexure A

 1   Section 57(1) of the Act

 2   Section 190(1) & (2) of the Act

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