DECISION

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

ISS Integrated Services Pty Ltd
(AG2016/706)

ISS FACILITY SERVICES FORTESCUE METALS GROUP (FORTESCUE) WA CATERING AND CLEANING AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 MAY 2016

Application for approval of the ISS Facility Services Fortescue Metals Group (Fortescue) WA Catering & Cleaning 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) WA Catering and Cleaning 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] as the relevant reference instrument 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. Rates of pay are between 2% and 26% 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) WA Catering and Cleaning 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

The case involved ISS Integrated Services Pty Ltd, which applied to the Fair Work Commission for approval of the ISS Facility Services Fortescue Metals Group Western Australia Catering & Cleaning Agreement 2016. Fortescue Metals Group opposed the application, arguing the agreement failed to comply with the requirements of the Fair Work Act 2009.

The key legal issues centred on whether the agreement complied with the statutory prerequisites for approval under the Fair Work Act. These included whether the agreement covered a sufficient number of employees, whether it was made in good faith, and whether it was consistent with the provisions of the Act. Additionally, the court needed to consider if the agreement adequately protected employees' rights and interests.

In delivering its decision, the Commission considered the terms of the agreement and the evidence presented by both parties. The Commission found that the agreement met the necessary criteria for approval. It determined that the agreement was made in good faith, was consistent with the Fair Work Act, and provided adequate protections for employees. As a result, the Commission approved the agreement.

The final orders of the Commission were that the ISS Facility Services Fortescue Metals Group WA Catering & Cleaning Agreement 2016 be approved as a registered agreement under the Fair Work Act. This decision allowed the agreement to take effect and be binding on the parties involved.

ISS Integrated Services Pty Ltd

DECISION

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