Morris Corporation (Aust) Pty Ltd

[2014] FWCA 4426

[2014] FWCA 4426

FAIR WORK COMMISSION

DECISION

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

Morris Corporation (Aust) Pty Ltd
(AG2014/1365)

MORRIS CORPORATION (AUST) PTY LTD ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 JULY 2014

Application for approval of the Morris Corporation (Aust) Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Morris Corporation (Aust) 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 Morris Corporation (Aust) Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 350 employees who provide catering, cleaning, facilities management and related services, but excludes employees in management positions, qualified tradespersons (other than qualified cooks), airport employees and those employed as ‘head chefs’. 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 10 March 2014, and voting for the Agreement’s approval took place on 26 May 2014 and concluded on 28 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot conducted by a third party, 170 of the 222 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 10 June 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Ms F Berkin 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 Berkinsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instrument, including a reduced rate for overtime worked for the first two hours on Saturday and reduced night shift allowance for level 1 and 2 employees between 7pm and 7am. However, the Agreement provides for a number of terms and conditions that are in excess of, or are more beneficial than those under the reference instrument, including a redundancy payment at the normal rate of rostered hours, including overtime, payment for normal rosters hours for employees on and off site in the event of bad weather, increased paid break provisions for employees working more than 6 hours, higher rates of pay, including 25% higher penalty rates for work on weekends, higher night shift, broken shift, and first aid allowances, and the provision of allowances not provided for in the Award, such as minesite and bus driver allowances. The Agreement also contains an option to cash out accrued annual leave and provides for additional paid compassionate leave. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions on the first pay period on or after 1 July 2014 and on 1 July during the Agreement’s nominal term, with the variation to be applied retrospectively where the Commission’s decision has not been handed down by that date. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility term at clause 1.7 and a dispute resolution procedure at clause 2.2 provides for mediation, conciliation and arbitration by the Commission. The Agreement contains the mandatory consultation clause at 2.1, however, it has been noted that the consultation clause in the Agreement does not comply with the recent amendments to the Act. Consequently, pursuant to ss 202(4) and of the Act, the model consultation clause becomes a term of the Agreement.

[4] At a hearing of the application on 1 July 2014, Mr J Hadley, Solicitor, appeared for the applicant, with Ms D Briscoe, Executive General Manager, Human Resources for the employer. Mr Simon Ong appeared for United Voice and Mr D Liston for the Australian Workers’ Union in their capacity as bargaining representatives along with Mr P Lund, Mr B Jones and Ms K Smith in their capacity as Employee Bargaining Representatives. United Voice had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wished to be covered by the Agreement (s 183). At the time of the approval of the Agreement, the Australian Workers’ Union had not given notice under s 183 and had not filed a F18. As the applicant opposed both Unions being covered by the Agreement, I determined that the objection to coverage should be decided separately to the approval process for the Agreement; See: DHL Supply Chain (Australia) Pty. Limited Enterprise Agreement - New South Wales 2011 [2011] FWAA 4557. Mr Hadley 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 offered to provide undertakings regarding the entitlement to notice of termination for employees at levels 1 and 2, based on length of service. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’

[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 180, 186, 187, 188, 190 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Morris Corporation (Aust) Pty Ltd Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 8 July 2014 and have a nominal expiry date of 7 July 2018.

[6] Determination of Union coverage will be made after the filing and service of submissions by the parties. Final submissions are due on 12 August, 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Price code G, AE408905  PR552702