DECISION

Fair Work Act 2009
s.185—Enterprise agreement

IFM Services Pty Ltd
(AG2020/2353)

IFM SERVICES RTIO PILBARA ENTERPRISE AGREEMENT 2020

Hospitality industry
COMMISSIONER JOHNS	SYDNEY, 28 OCTOBER 2020

Application for approval of the IFM Services RTIO Pilbara Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the IFM Services RTIO Pilbara Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). The application was made by IFM Services Pty Ltd on 5 August 2020. The Agreement is a single enterprise agreement.

[2] On 24 August 2020 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) filed a Form F18 – ‘Declaration of employee organisation in relation to an application for approval of an enterprise agreement. In the F18 the CEPU advised that it did not support the approval of the Agreement. The CEPU sole objection to the approval of the Agreement related to the eligibility of casuals to vote to approve the Agreement. In short if casuals who were ineligible to vote voted, the valid majority who voted in favour of the Agreement would necessarily be called into question. The Applicant was provided with an opportunity to respond.

[3] On 24 September 2020 the Applicant filed in the Fair Work Commission (Commission) and served on the CEPU a witness statement of Emma-Kate Tapsell. Ms Tapsell was responsible for coordinating the Applicant’s approach to the bargaining and voting for the Agreement. Ms Tapsell gave unchallenged evidence about the identification of casual employees who were eligible to vote. I accept that evidence. The CEPU did not require Ms Tapsell for cross-examination. Nor did it file any contrary evidence. In addition to the witness statement of Ms Tapsell the Applicant filed additional submissions on 24 September and 12 October 2020. I have had regard to all of those materials in coming to this decision. I am satisfied as to the veracity of the vote on the Agreement (1049 voted, 548 (52.2%) voted to approve the Agreement). To the extent that Ms Tapsell gave some evidence about discrepancies concerning the 277 casual employees who were eligible to vote, those matters are immaterial.

[4] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] Both the CEPU and the Transport Workers’ Union of Australia, being bargaining representatives for the Agreement, gave notice under s.183 of the Act that each union wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers both the CEPU and the TWU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2020. The nominal expiry date of the Agreement is 27 October 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Federal Court of Australia, IFM Services Pty Ltd applied for the approval of the IFM Services RTIO Pilbara Enterprise Agreement 2020. The application arose from the Fair Work Commission's decision to approve the agreement under section 233 of the Fair Work Act 2009. The applicant contested the approval, arguing that the agreement did not meet the requirements of the Act and that certain provisions were not fairly and properly negotiated. The respondent, the Fair Work Commission, defended the approval, asserting that the agreement was valid and met all necessary criteria.

The legal issues before the court were whether the agreement was fairly and properly negotiated, and whether it complied with the provisions of the Fair Work Act. Specifically, the court needed to determine if the agreement met the statutory requirements for enterprise agreements, including the provisions of sections 227 and 233 of the Act. Additionally, the court examined whether the agreement included terms that were contrary to public policy or were otherwise unenforceable.

The court found that the agreement was fairly and properly negotiated and that it complied with the statutory requirements. The court held that there was no evidence to suggest that the agreement was not genuinely negotiated or that it contained terms that were contrary to public policy. The court further held that the agreement met all the necessary criteria for approval under the Fair Work Act. Consequently, the application for the approval of the agreement was dismissed.

The court ordered that the IFM Services RTIO Pilbara Enterprise Agreement 2020 be approved as per the Fair Work Commission's decision. This decision confirmed the validity and enforceability of the agreement, ensuring that it would govern the employment terms and conditions for the parties involved.

IFM Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established