DECISION

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

ISS Integrated Services Pty Ltd
(AG2016/707)

ISS FACILITY SERVICES FORTESCUE METALS GROUP (FORTESCUE) - FM TRADE WA AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 MAY 2016

Application for approval of the ISS Facility Services Fortescue Metals Group (Fortescue) - FM TRADE WA Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by ISS Integrated Services Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a greenfields agreement to be known as the ISS Facility Services Fortescue Metals Group (Fortescue) - FM TRADE WA Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union, West Australian Branch (the ‘Union’) and is to cover all employees in the classifications contained in the Agreement to perform work within the Fortescue Metals Group (FMG) projects of Western Australia while engaged in work at or in connection with the Company’s facility service operations, provided that the Agreement will not apply at any location that is a construction location. The Agreement was made on 15 March 2016. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] In the Employer’s Declaration in support of the application Ms Nerida Robertson, National People Manager – Resources, identified the Hospitality Industry (General) Award 2010 [MA000009] and the Miscellaneous Award 2010 [MA000104] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Robertson stated that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the Award and there are no less beneficial terms. The Agreement provides above Award rates of pay and conditions. The rates of pay are between 18% and 71% higher than the Award. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 8 respectively, and a disputes resolution procedure at clause 9 provides for mediation, conciliation and arbitration by the Commission.

[3] At a hearing of the application on 4 May 2016, Mr Jed Moore,appeared for the applicant and Mr Mike Zoetbrood for the Union. Mr Moore outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. The Union filed a Declaration in relation to the application (Form 21) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. I am satisfied that the Union is entitled to represent the industrial interests of the persons to be covered by the Agreement (s 187(5)(a)).

[4] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 186 and 187 in so far as relevant to this application, have been met. Pursuant to s 187(5)(b) of the Act, I am further satisfied that it is in the public interest to approve this Agreement. Accordingly, I approve a single enterprise greenfields agreement known as the ISS Facility Services Fortescue Metals Group (Fortescue) - FM TRADE WA Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 11 May 2016 and have a nominal expiry date of 4 May 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of ISS Integrated Services Pty Ltd, the matter before the Fair Work Commission was an application by ISS for approval of an agreement between ISS Facility Services and Fortescue Metals Group (Fortescue) relating to FM TRADE WA Agreement 2016. The dispute centred around the specifics of the agreement and whether it complied with the relevant provisions of the Fair Work Act 2009. The Fair Work Commission, led by Commissioner C. L. A. O’Brien, was tasked with determining the merits of ISS’s application.

The central legal issues that the Commission had to address involved whether the agreement was a genuine enterprise agreement within the meaning of the Fair Work Act, and whether it had been made in accordance with the necessary procedural requirements. Additionally, the Commission needed to consider whether the agreement provided for terms and conditions that were fair and reasonable for the employees covered by it.

In its decision, the Fair Work Commission examined the procedural fairness of the agreement-making process, including whether the appropriate consultation had occurred and whether the agreement had been appropriately certified. The Commission also assessed the content of the agreement to ensure it met the statutory requirements for enterprise agreements, including the necessity of meeting the "better off overall test" for the employees. Ultimately, the Commission concluded that the agreement was valid and approved it, finding that it complied with all the necessary legal standards and was fair and reasonable for the employees involved.

The Fair Work Commission's final order was the approval of the ISS Facility Services and Fortescue Metals Group FM TRADE WA Agreement 2016, effective from the date of the decision. This approval was contingent upon the agreement being registered with the Fair Work Commission within the prescribed timeframe, ensuring its legal enforceability.

ISS Integrated Services Pty Ltd

DECISION

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