Iron Mountain Australia Services Pty Ltd

[2016] FWCA 7144

[2016] FWCA 7144

FAIR WORK COMMISSION

DECISION

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

Iron Mountain Australia Services Pty Ltd
(AG2016/5247)

IRON MOUNTAIN AUSTRALIA SERVICES RECORDS MANAGEMENT (NSW) ENTERPRISE AGREEMENT 2016-2019

Road transport industry
DEPUTY PRESIDENT BULL	SYDNEY, 13 OCTOBER 2016

Application for approval of the Mountain Australia Services Records Management (NSW) Enterprise Agreement 2016 - 2019.

[1] An application has been made by Iron Mountain Australia Services Pty Ltd (the applicant) for the approval of an enterprise agreement known as the Mountain Australia Services Records Management (NSW) Enterprise Agreement 2016 - 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The applicant’s F17 Statutory Declaration and the coverage clause in the Agreement did not clearly identify the group of employees who would be covered by the Agreement. The Commission wrote to the applicant requesting to be provided with further detail as to how the group of employees to be covered by the Agreement is either geographically, operationally or organisationally distinct, pursuant to s.186(3A) of the Act.

[3] The applicant in reply stated that the Agreement covers all Iron Mountain Australia Services employees working in Records Management in NSW. The only other NSW department is called “Imaging” and those employees are covered by a separate agreement.

[4] I am satisfied that the employees to be covered are geographically and operationally distinct, and as such, per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

Dispute Settlement Procedure

[5] The Commission wrote to the applicant noting that, while a dispute resolution clause had been included in the Agreement, it did not comply with s.186(6)(a)(ii) of the Act because it did not provide a procedure for settling disputes about matters arising in relation to the National Employment Standards (NES).

[6] The applicant has rectified this by way of an undertaking stating that the dispute resolution procedure at clause 25 of the Agreement shall apply to any disputes which may arise in relation to the NES.

Shiftworkers

[7] The applicant noted in its F17 Statutory Declaration that it does not currently employ seven day shiftworkers, who would be entitled to an additional week of annual leave in accordance with the NES.

[8] To provide assurance that all prospective employees will be better off under the Agreement, the Commission requested the applicant provide an undertaking that it would not, in the future, roster prospective shiftworkers on weekends. The applicant has provided this assurance by way of an undertaking.

Better off over all test (BOOT)

[9] With respect to the better off overall test (BOOT) under s.186 of the Act, the terms and conditions under the Agreement are overall more beneficial than under the Road Transport Distribution Award 2016 (the Award), being the relevant instrument for the purposes of the BOOT. Under the Agreement some Award entitlements have been reduced, including penalty rates for casual employees, however the Agreement provides base rates of pay that are between 23.34% - 39.55% higher than the Award rates, as well as increased meal and first aid allowances and more beneficial redundancy pay entitlements.

Conclusion

[10] Taking into account the higher rates of pay, increased allowances and redundancy entitlements under the Agreement, and balancing these benefits with the terms of the Agreement that are less beneficial than the Award, I am satisfied that employees will be better off overall under the Agreement.

Undertakings

[11] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure A. The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[13] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

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Annexure A