ISS Health Services Pty Ltd T/A ISS Facility Services

[2024] FWCA 781

[2024] FWCA 781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ISS Health Services Pty Ltd T/A ISS Facility Services

(AG2024/43)

ISS FACILITY SERVICES SOUTH AUSTRALIA PUBLIC HOSPITALS ENTERPRISE AGREEMENT 2024

Health and welfare services
COMMISSIONER YILMAZ	MELBOURNE, 8 MARCH 2024

Application for approval of the ISS Facility Services South Australia Public Hospitals Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the ISS Facility Services South Australia Public Hospitals Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ISS Health Services Pty Ltd T/A ISS Facility Services (the Applicant). The Agreement is a single enterprise agreement.

1. It is noted that the pre-6 June 2023 reforms version of the NERR appears to have been used when issuing the NERR. While the incorrect NERR is inconsistent with the Act, I am satisfied that the enterprise agreement is genuinely agreed to by employees and the error is a minor procedural error. Pursuant to s.188(5)(a)  the error may be disregarded.

1. An employee appointed bargaining representative, Peter Collis of Australian Employment Alliance, filed an F18A on 15 January 2024 opposing the approval of the Agreement in respect of clause 43.1, which provides:

‘43.     Consultative committee

43.1     The parties agree to establish or continue a consultative committee to assist with improving productivity efficiency and to provide recommendations for the decision making process. The committee will consist of an equal number of Employer and the Union.’

1. The objection is that non-members of the Union, as parties to the Agreement, should also be able to participate in the Consultative Committee.

1. The objector has provided no detail in support of its basis for objection, other than the submission that non-members of the union should have the same rights to a consultative committee; I observe that there are no objections to the balance of clauses contained in Part 7 of the Agreement.

1. The Applicant submits that a consultative committee is not a requirement of either the modern award or the NES, and it is not unusual for such committees to be comprised only of union members and employer representatives. The objection raised is not a factor that the Commission is required to give consideration to in determining the approval of the agreement. Further it submits the proposed agreement including the consultative committee clause was approved by a strong majority of employees and no weight should be given to the objection.

1. The Agreement in Part 7 titled Union Relationship and Related matters commences at clause 39 which states that the “employer recognises the value of a positive and constructive relationship with the Union’ and on that basis there is agreement to the following provisions:

·   recognition of a union delegates role,

·   the provision of facilities to a union delegate to conduct its business,

·   the provision of union training leave,

·   the provision of a consultative committee,

·   provision for payroll deductions to the United Workers Union,

·   paid workplace information sessions,

·   orientation and induction programs,

·   consultation with affected Employees and the Union when engaging sub-contractors and labour hire. 

1. Reference in clause 43.1 to Union means the United Workers Union (UWU) (defined in clause 3 definitions). Clause 43.1 is intended to provide a forum for the UWU to meet with the Employer to discuss productivity efficiencies.

1. The Commission must consider if there are unlawful terms which include discriminatory or objectionable terms, taking into consideration ss172, 186(4), 186(4A), 194, 195 and 253.  

1. No unlawful terms have been identified in the assessment of the Agreement, and having considered the limited detail regarding the objection, I am not satisfied that the clause is an unlawful term.

1. The Employer 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 the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The UWU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The Agreement is approved and in accordance with s.54, will operate from 15 March 2024. The nominal expiry date of the Agreement is 7 March 2028.

COMMISSIONER

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Annexure A