ISS Property Services Pty Ltd

[2013] FWCA 6695

[2013] FWCA 6695

FAIR WORK COMMISSION

DECISION

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

ISS Property Services Pty Ltd
(AG2013/2371)

ISS FACILITY SERVICES CITIC PACIFIC MINING WA AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 SEPTEMBER 2013

Application for approval of the ISS Facility Services Citic Pacific Mining WA Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by ISS Property 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 Facility Services Citic Pacific Mining WA Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’). The Agreement is to cover employees who are engaged in the provision of catering, cleaning and facility management services at the Citic Pacific Mining Villages in the Pilbara region of Western Australia. 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] Pursuant to s 182(3) of the Act, the Agreement was made between the applicant and the Union on 6 August 2013. The application for approval of the Agreement by the Commission was lodged on 15 August 2013, thereby satisfying s 185(4) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F20) Mr P Thomson, Executive General Manager Key Accounts 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 Thomsonsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the Modern Award and that there are no less beneficial terms. The Agreement provides for higher rates of pay which are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. 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 conciliation and arbitration by the Commission.

[4] At a hearing of the application on 28 August 2013, Mr J Moore,appeared for the applicant and Mr S O’Reilly for the Union. 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. I am satisfied that the Union is entitled to represent the industrial interests of the employees to be covered by the Agreement (s 187(5)).

[5] 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. He explained that much of the work at the mine sites is performed on a Fly In Fly Out basis and that there was a certain amount of rostered overtime. The basic rates of pay were approximately 3.5-4% above the base rate provided for in the Modern Award, but the application of annualised rates based on the roster provisions results in a substantial benefit to the employees. Mr O’Reilly supported the submissions of Mr Moore.

[6] 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. In particular, pursuant to s 187(5)(b) of the Act, I am satisfied it is in the public interest to approve the Agreement, noting the project will create approximately 85 new jobs. Accordingly, I approve a single enterprise agreement known as the ISS Facility Services Citic Pacific Mining WA Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 4 September 2013 and have a nominal expiry date of 3 September 2017.

DEPUTY PRESIDENT

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