ISS Health Services Pty Ltd

[2023] FWCA 2615

[2023] FWCA 2615

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ISS Health Services Pty Ltd

(AG2023/2426)

ISS FACILITY SERVICES PUBLIC HOSPITALS (VICTORIA) ENTERPRISE AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT BELL	MELBOURNE, 17 AUGUST 2023

Application for approval of the ISS Facility Services Public Hospitals (Victoria) Enterprise Agreement 2023.

1. An application has been made for approval of an enterprise agreement known as the ISS Facility Services Public Hospitals (Victoria) Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer ISS Health Services Pty Ltd. The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 17 November 2022 and the Agreement was made on 13 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1]

1. Correspondence was sent by my chambers to the employer raising potential concerns regarding patterns of work and their potential impact on the better off overall test. The concern was in relation to the entitlement of part-time employees to overtime for working in excess of 10 hours per shift or for working in excess of their contracted hours. The employer submitted, and I accept, that the reasonably foreseeable work patterns for part-time employees on rostered shifts only involve additional hours 2.6% of the time and the average additional period of work is 1.06 hours per shift so worked. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that patterns of work for part-time employees exceeding that just described are not reasonably foreseeable, as that is relevant for the better off overall test.

1. Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 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 Health Services Union (HSU), 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 was approved on 17 August 2023 and, in accordance with s.54 of the Act, will operate from 24 August 2023. The nominal expiry date of the Agreement is 23 August 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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