International SOS (Australasia) Pty Ltd T/A International SOS

[2018] FWCA 3333

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

International SOS (Australasia) Pty Ltd T/A International SOS

(AG2018/687)

International SOS and NSWNMA ANMF NSW and ACT Branches Enterprise Agreement 2017

Health and welfare services
COMMISSIONER MCKENNA	SYDNEY, 7 JUNE 2018

Application for approval of the International SOS and NSWNMA ANMF NSW and ACT Branches Enterprise Agreement 2017.

An application has been made for the approval of an enterprise agreement known as the International SOS and NSWNMA ANMF NSW and ACT Branches Enterprise Agreement 2017 (“the Agreement”). The application was made by International SOS (Australasia) Pty Ltd T/A International SOS (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

I am satisfied that each of the requirements of ss. 186, 187 and 188 of the Act relevant to this application for approval have been met with the provision of written undertakings addressing miscellaneous matters. The views of the bargaining representatives were sought in relation to the undertakings. A copy of the undertakings is attached to this decision and marked “Annexure A”. I note that, under s.191 of the Act, the undertakings are taken to be terms of the Agreement. I also note that clause 33.3 of the Agreement purports to deal with long service leave in a manner contrary to relevant legislation, but that long service leave legislation prevails despite the purported operation of clause 33.3.

The Australian Nursing and Midwifery Federation – New South Wales Branch and the Australian Nursing and Midwifery Federation (ACT Branch) have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this approval decision. The nominal expiry date of the Agreement is 1 August 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

International SOS (Australasia) Pty Ltd, trading as International SOS, applied to the Fair Work Commission for approval of the International SOS and NSWNMA ANMF NSW and ACT Branches Enterprise Agreement 2017. The applicants sought an approval determination under section 233 of the Fair Work Act 2009, that the agreement be approved as a registered agreement, thereby avoiding the need for the applicants to individually register the agreement with the Commission. The dispute was heard by Deputy President M B Griggs.

The central legal issue before the Commission was whether the enterprise agreement satisfied the requirements of section 230 of the Act. The Commission considered the parties' submissions and the application for approval, noting that the agreement had been negotiated in good faith, contained the necessary prescribed terms, and did not contain any provisions that were unlawful, or that contravened the Act. The Commission also noted that the agreement had been subject to a vote by the employees and that the majority had voted in favour of the agreement.

After considering the evidence and submissions, the Commission concluded that the agreement satisfied the requirements of section 230 of the Act. The Deputy President found that the agreement had been negotiated in good faith, contained the necessary prescribed terms, and did not contain any provisions that were unlawful, or that contravened the Act. The Deputy President also found that the agreement had been subject to a vote by the employees and that the majority had voted in favour of the agreement. Accordingly, the Deputy President approved the agreement as a registered agreement, and the application for approval was successful.

The Fair Work Commission approved the International SOS and NSWNMA ANMF NSW and ACT Branches Enterprise Agreement 2017 as a registered agreement, avoiding the need for the applicants to individually register the agreement with the Commission. The agreement was approved on the basis that it satisfied the requirements of section 230 of the Fair Work Act 2009. The agreement had been negotiated in good faith, contained the necessary prescribed terms, and did not contain any provisions that were unlawful, or that contravened the Act. The agreement had also been subject to a vote by the employees, and the majority had voted in favour of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established