ISS Property Services Pty Ltd T/A ISS Facility Services

[2016] FWCA 6260

[2016] FWCA 6260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

ISS Property Services Pty Ltd T/A ISS Facility Services
(AG2016/4003)

ISS FACILITY SERVICES CITIC PACIFIC MINING WA AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 1 SEPTEMBER 2016

Application for approval of the ISS Facility Services Citic Pacific Mining WA Agreement 2016.

[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 single enterprise agreement to be known as the ISS Facility Services Citic Pacific Mining WA Agreement 2016 (the ‘Agreement’). The Agreement was not negotiated with any Employee Bargaining Representatives although Mr J Moore of the applicant submitted during a hearing of the application on 31 August 2016 that the Australian Workers’ Union had been initially involved in bargaining, but did not actively participate after that. The Agreement is to cover 190 employees who are employed within the classifications of the Agreement and who perform work at or in connection with the applicant’s Facility Services operations in 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] The employees were last notified of their representational rights on 14 June 2016, and voting for the Agreement’s approval took place on 8 July 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 116 of the 128 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 July 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms N 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 said that the Agreement does not provide for any terms or conditions that are less beneficial than those under the reference instrument. The Agreement provides for terms and conditions that are more beneficial than, or in excess of those under the reference instrument, including higher rates of pay. Rates of pay are to be increased by the Commission’s Minimum Wage Review Decision on the first full pay period on or following 1 July each year during the nominal term of the Agreement, although I note that such increases may be deferred for economic reasons, if agreed to by the Union (presumably the AWU). I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7, 8 and 9, and a disputes resolution procedure at clauses 10 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 31 August 2016, Mr Moore appeared on behalf of the applicant. The Commission has not received any declaration in relation to the application (Form F18) from any employee organisation. 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. Mr Moore explained that the Agreement provides for different rates of pay for employees engaged before and after the approval of the Agreement.

[5] Having heard the applicant’s 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 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the ISS Facility Services Citic Pacific Mining WA Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 7 September 2016 and have a nominal expiry date of 31 August 2020.

DEPUTY PRESIDENT

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