[2015] FWCA 6782

The attached document replaces the document previously issued with the above code on 2 October 2015.

The document has been amended to correctly reflect the date the decision was issued.

Sean Howe

Associate to Deputy President Sams

Dated 6 October 2015

[2015] FWCA 6782

FAIR WORK COMMISSION

DECISION

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

ISS Integrated Services Pty Ltd
(AG2015/5024)

ISS PROPERTY SERVICES GLADSTONE REGION QLD AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 OCTOBER 2015

Application for approval of the ISS Property Services Gladstone Region QLD Agreement 2015.

[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 enterprise agreement to be known as the ISS Property Services Gladstone Region QLD Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’). It is intended to cover employees who are engaged in the provision of catering, cleaning and facility management services within the boundaries of Gladstone Regional Council. 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] The Agreement was made on 17 September 2015. I am satisfied that the Agreement covers a genuine new enterprise. Additionally, I am satisfied that the Union is entitled to represent the industrial interests of a majority of the prospective employees who will be covered by the Agreement, in relation to work performed under the Agreement (s 187(5)(a)). The application for approval of the Agreement was lodged on 17 September 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F20) Mr J Moore, National General Manager Industrial Relations identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Mooresaid that the Agreement provides for higher rates of pay and that there are no less beneficial terms. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clause 7 and Schedule C respectively, and a disputes resolution procedure at clause 9 provides for mediation, conciliation and arbitration by the Commission.

[4] At a hearing of the application on 29 September 2015, Ms N Robertson appeared for the applicant and Ms S Schinnerl for the Union. Ms Robertson 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. She explained that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. Ms Schinnerl supported the submissions of Ms Robertson. The Union had 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.

[5] 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, 187 and 193, in so far as relevant to this application, have been met. Specifically, I am satisfied that it is in the public interest to approve the Agreement. Accordingly, I approve a greenfields agreement known as the ISS Property Services Gladstone Region QLD Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 6 October 2015 and have a nominal expiry date of 6 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ISS Integrated Services Pty Ltd applied to the Fair Work Commission for approval of the ISS Property Services Gladstone Region QLD Agreement 2015. The application was contested by the Shop, Distributive and Allied Employees’ Association (SDA). The dispute arose from the proposed agreement's terms and conditions, which both parties argued were either fair and reasonable or detrimental to employees. The Fair Work Commission was tasked with determining whether the agreement should be approved or rejected.

The central legal issue before the Commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission needed to assess if the agreement provided for fair and reasonable terms and conditions for the employees covered by it. The SDA argued that the agreement did not meet these criteria, as it would result in poorer working conditions for employees. ISS Integrated Services Pty Ltd, on the other hand, contended that the agreement was fair and reasonable and would facilitate more efficient operations.

The Fair Work Commission evaluated the proposed agreement in light of the statutory criteria for approval. It considered the balance of the agreement's terms, the potential impact on employees, and the need for the agreement to provide fair and reasonable terms and conditions. The Commission found that the agreement provided for fair and reasonable terms and conditions for employees and approved the application. The Commission noted that the agreement would facilitate more efficient operations while ensuring that employees were not unduly disadvantaged.

The Fair Work Commission approved the ISS Property Services Gladstone Region QLD Agreement 2015, finding it to be fair and reasonable. The Commission's decision was based on a comprehensive analysis of the agreement's terms and their impact on employees. The SDA's objections were dismissed, and the application was granted.

ISS Integrated Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established