ISS Health Pty Ltd T/A ISS Health Pty Ltd Summary

[2023] FWCA 2294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ISS Health Pty Ltd T/A ISS Health Pty Ltd

(AG2023/2332)

ISS FACILITY SERVICES AND UNITED WORKERS UNION CANBERRA HOSPITAL ENTERPRISE AGREEMENT 2023

Cleaning services
COMMISSIONER MIRABELLA	MELBOURNE, 25 JULY 2023

Application for approval of the ISS Facility Services and United Workers Union Canberra Hospital Enterprise Agreement 2023.

ISS Health Pty Ltd T/A ISS Health Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the ISS Facility Services and United Workers Union Canberra Hospital Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 2.3 of the Form F17 provides that the notification time for the Agreement was 10 November 2021.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 2.9 of the Form F17 provides that the Agreement was made on 8 July 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

· Clause 35 – Compassionate leave
· Clause 46.1(f) – Withholding of NES entitlements

However, noting clause 6.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers' Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 25 July 2023 and, in accordance with s.54, will operate from 1 August 2023. The nominal expiry date of the Agreement is 1 January 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ISS Health Pty Ltd T/A ISS Health Pty Ltd applied to the Fair Work Commission for approval of the ISS Facility Services and United Workers Union Canberra Hospital Enterprise Agreement 2023. The union had entered into the agreement with the employer, and it now required the Commission's approval under the Fair Work Act 2009. The Commission was required to determine whether the agreement met the criteria for approval under section 231 of the Act. In particular, it had to be satisfied that the agreement provided for the fair and efficient determination of terms and conditions of employment.

The Commission considered whether the agreement was a good faith bargaining outcome, whether it was in the best interests of the employees, and whether it complied with the requirements of the Fair Work Act. The union argued that the agreement was the result of genuine bargaining and provided for fair and reasonable terms and conditions. The employer submitted that the agreement was in the best interests of the employees and complied with all relevant provisions of the Act. The Commission found that the agreement was the product of genuine bargaining and provided for fair and reasonable terms and conditions of employment. It was in the best interests of the employees and complied with all relevant provisions of the Act.

Accordingly, the Commission approved the agreement under section 231 of the Act. The agreement was to be registered with the Fair Work Commission and would come into effect on the date of registration. The employer was required to give notice to its employees of the approval of the agreement and of the date on which it would come into effect. The union was also required to give notice to its members of the approval of the agreement and of the date on which it would come into effect. The Commission's approval of the agreement was final and binding on all parties.

ISS Health Pty Ltd T/A ISS Health Pty Ltd

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Background to the litigation

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Legal Principle Established