IFM Services Pty Ltd

[2016] FWCA 6400

[2016] FWCA 6400

FAIR WORK COMMISSION

DECISION

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

IFM Services Pty Ltd
(AG2016/5014)

IFM SERVICES PTY LTD ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 SEPTEMBER 2016

Approval of the IFM Services Pty Ltd Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by IFM 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 IFM Services Pty Ltd Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was not negotiated with a Union or any Employee Bargaining Representatives. It is to cover all employees of the applicant (currently eight) who perform contract catering, cleaning, facilities management and related services. The employees are fly-in, fly-out workers, who work at mine sites in the Pilbara region of Western Australia. 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.

[1] The employees were last notified of their representational rights on 6 July 2016, and voting for the Agreement’s approval took place on 30-31 July 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all five employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 10 August 2016, thereby satisfying s 185(3) of the Act.

[2] In the Employer’s Statutory Declaration in support of the application (Form F17), Ms Kelly, Director/Secretary of the applicant, identified the Hospitality Industry (General) Award 2010 [MA000009] (the Award) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). The base wage rates, penalty rates and overtime rates in the Agreement are generally in line with those in the reference instrument. There are a few allowances provided for in the reference instrument that the Agreement does not include. However, the Agreement provides for employees to be provided with meals and accommodation without having the costs deducted from their wages (as the applicant would be entitled to do were the Award to apply). I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 2 and 3 of Part 7 respectively, and a dispute resolution procedure at clause 1 of Part 7 provides for conciliation and, if the dispute remains unresolved, arbitration by the Commission.

[3] At a hearing of the application on 6 September 2016, Mr D Fletcher and Ms E Nagle, solicitors, appeared with permission on behalf of the applicant, together with Mr C Purves, Ms S Jones and Ms A Avalos of the applicant. Mr Fletcher submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. Mr Fletcher explained that although the Agreement largely reflects the Award rates and conditions, the applicant sought to have a fixed-term enterprise agreement to provide certainty when it tenders for contract work.

[4] Having heard the applicant’s submissions and upon reviewing theterms of the pre-approval 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 they are relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as the IFM Services Pty Ltd Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 13 September 2016. It shall have a nominal expiry date of 6 September 2020.

DEPUTY PRESIDENT

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