Serco Sodexo Defence Services Pty Limited

[2014] FWCA 5715

[2014] FWCA 5715

FAIR WORK COMMISSION

DECISION

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

Serco Sodexo Defence Services Pty Limited
(AG2014/6954)

SERCO SODEXO DEFENCE SERVICES PTY LTD SHOALHAVEN AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 SEPTEMBER 2014

Application for approval of the Serco Sodexo Defence Services Pty Ltd Shoalhaven Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Serco Sodexo Defence Services Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Serco Sodexo Defence Services Pty Ltd Shoalhaven Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with United Voice, the Transport Workers’ Union of Australia (TWU), the National Union of Workers (NUW) (collectively the ‘Unions’) and eleven non-Union Employee Bargaining Representatives and is to cover 176 employees who are engaged in the provision of hospitality and facilities management services in satisfaction of a contract with the Department of Defence. 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 16 July 2013, and voting for the Agreement’s approval took place between 11 and 14 July 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 121 of the 126 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 July 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S La Penna identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

• Hospitality Industry (General) Award 2010 [MA000009];



• Cleaning Services Award 2010 [MA000022];



• Gardening and Landscaping Services Award 2010 [MA000101];



• Security Services Industry Award 2010 [MA000016];



• Storage Services and Wholesale Award 2010 [MA000084];



• Fitness Industry Award 2010 [MA000094];



• Vehicle Manufacturing, Repair, Service & Retail Award 2010 [MA000089]; and



• Clerks - Private Sector Award 2010 [MA000002]

[4] Ms La Pennasaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, additional allowances and a parental leave bonus. The Agreement provides for the mandatory flexibility and consultation terms at clauses 4.3 and 9 respectively, and a disputes resolution procedure at clause 10 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 11 August 2014, Ms S La Penna appeared for the applicant, Mr A Snowball for the NUW, Mr M Vance and Mr C Acev for United Voice and Mr L Lawler for the TWU. Mr B Shimmer, Ms J Ross, Mr J Barker and Mr W Frank appeared in their respective capacities as Employee Bargaining Representatives. Ms La Penna 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 Unions had filed Declarations in relation to the application giving notice that they wish to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement. The Declarations of the TWU and NUW set out that they also supported the approval of the Agreement and the Employee Bargaining Representatives indicated that they had no issues with the Agreement. However, the Declaration of United Voice sought undertakings in relation to the deduction of monies from employees, public holiday loadings for casual employees and other issues. The applicant subsequently provided undertakings to the satisfaction of United Voice. Pursuant to s 191(1) of the Act, the undertakings are taken to be a term of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’. I am satisfied that the Agreement passes the BOOT.

[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 180, 186, 187, 188, 190, 192 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Serco Sodexo Defence Services Pty Ltd Shoalhaven Agreement 2014 Pursuant to s 54 of the Act, the Agreement shall operate from 18 September 2014 and have a nominal expiry date of 31 December 2014.

DEPUTY PRESIDENT

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