Sodexo Remote Sites Australia Pty Ltd

[2024] FWCA 3023

[2024] FWCA 3023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sodexo Remote Sites Australia Pty Ltd

(AG2024/2044)

SODEXO REMOTE SITES ONSHORE ENTERPRISE AGREEMENT 2024

Hospitality industry
COMMISSIONER MATHESON	SYDNEY, 19 AUGUST 2024

Application for approval of the Sodexo Remote Sites Onshore Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Sodexo Remote Sites Onshore Enterprise Agreement 2024 (Agreement). The application was made by Sodexo Remote Sites Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clauses 6.1 and 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. Further, the Applicant has provided undertakings to address some of the inconsistencies.

1. The Commission raised concerns in relation to the better off overall test (BOOT), including a concern that the Base Hourly Rate of Pay for Aviation Services Officer employees fell below the rate for the corresponding classification in the Airline Operations Ground Staff Award 2020 (Award), which had initially been identified in the Form F17B filed by the Applicant as being a ‘Clerical, Administrative and Support Stream – Level 3’. The Applicant provided an undertaking that increased the Base Hourly Rate of Pay for an Aviation Services Officer as well as other classifications in the Aviation Stream of the Agreement.

1. When views of employees were sought in relation to the undertakings a bargaining representative, Ms Zilles, raised that the Base Hourly Rate of Pay for an Aviation Services Officer in the undertaking remained below the rate for a ‘Clerical, Administrative and Support Stream – Level 3’ employee under the Award. This was raised with the Applicant who clarified that an error had been made in the classification matching in the Form F17B and that the Aviation Services Officer classification in the Agreement should have been matched to the ‘Aviation Transport Workers’ Stream – Level 3’ classification in the Award rather than the ‘Clerical, Administrative and Support Stream – Level 3’. The undertaking provided by the Applicant includes a Base Hourly Rate of Pay for an Aviation Services Officer that is above the ‘Aviation Transport Workers’ Stream – Level 3’ classification in the Award. Further, the Applicant provided an undertaking that upon commencement the rates contained within Schedule 1 of the Agreement will increase effective immediately in accordance with clause 24.1 and explained that this will provide an immediate 3.75% uplift in the Base Hourly Rate of Pay in line with the Commission’s annual wage review increase which took effect from the first pay period after 1 July 2024. This has the effect of that the Base Hourly Rate of Pay for an Aviation Services Officer is $27.58 on commencement of the Agreement, well above the rate for the ‘Aviation Transport Workers’ Stream – Level 3’ classification in the Award as at the test time.

1. The Commission raised that the Agreement did not appear to provide for a span of ordinary hours, presenting a BOOT concern for employees paid the Base Hourly Rate of Pay and who were working at times which attracted overtime under the Award. The Applicant sought to address this concern by providing an undertaking that included a span of hours as well an upper limit of 10 ordinary hours per day in respect of employees covered by the Award. When bargaining representative views were sought in relation to the undertakings Ms Zilles raised the concern that it was “unclear what the impact of changing employees undertaking work covered by the Airline Award’s ordinary hours from Sodexo’s current calculation of 8.1429 ordinary hours in a day to 10 ordinary hours per day will have on overtime entitlements for these employees”. The calculation of 8.1429 ordinary hours referred to is the number of ordinary hours worked in a day according to the Applicant’s 14/7 roster arrangements (which involve working 14 days on and 7 days off) with the effect that the average ordinary hours of work for full time employees is 38 hours per week. It is apparent that the Applicant did not intend to enable employees to work 10 hours per day with the effect that the 38 hour average of ordinary hours as prescribed by clause 33.1 of the Agreement could be exceeded without providing compensation for overtime for those additional hours. To clarify this, the Applicant has provided an undertaking which provides that where employees work outside of or in addition to the ordinary hours of the Agreement, they will be paid overtime or, where an employee is paid an Annualised Wage, that wage will be calculated to include the overtime rates applicable to the overtime hours within the employee’s roster (as per Schedule 2 of the Agreement).

1. Schedule 1 of the Agreement sets out a range of roster cycles, including a 14/7 roster which includes working 11 hour days. Clause 14.2 of the Award provides that ordinary hours must not exceed 152 hours in 28 consecutive days. Ms Zilles raised the concern that undertaking a 14 day roster, with 11 hour days, would mean that the 152 hour requirement across 28 days as provided for in clause 14.2 of the Award would be exceeded. Ms Zilles’ concern appears to proceed on the assumption that the averaging period would be three weeks and that the rostering arrangement could result in between 154 and 231 hours being worked across that period.

1. However clause 14.3(c) of the Award provides that by Agreement between the employer and a majority of employees concerned, a roster system may operate on the basis that the weekly average of 38 ordinary hours is achieved over a period which exceeds 28 consecutive days but does not exceed 12 months. In this regard, clause 33.1 of the Agreement permits averaging across a period of up to 26 weeks. The Applicant clarified in its response to Ms Zilles’ concern that it does not roster more than an average of 38 ordinary hours per week within a roster cycle (notwithstanding that a roster can also include overtime hours). The Applicant clarified that whilst an employee who works a roster cycle of 14 days on and 7 days off with 11 hours worked per shift may technically work more than 152 ordinary hours in a consecutive 28 day period, that 28 day period would span two roster cycles, leaving the next consecutive 28 day period with less than 152 ordinary hours worked. The following example was provided to demonstrate that the rostering of ordinary hours does not exceed the average of 38 hours as provided for in clause 33.1:

Day 1	Day 2	Day 3	Day 4	Day 5	Day 6	Day 7	Sub-total	Running Total
Week 1	8.14	8.14	8.14	8.14	8.14	8.14	8.14	57	57
Week 2	8.14	8.14	8.14	8.14	8.14	8.14	8.14	57	114
Week 3	R&R	R&R	R&R	R&R	R&R	R&R	R&R	0	114
Week 4	8.14	8.14	8.14	8.14	8.14	8.14	8.14	57	171
Week 5	8.14	8.14	8.14	8.14	8.14	8.14	8.14	57	228
Week 6	R&R	R&R	R&R	R&R	R&R	R&R	R&R	0	228
Week 7	8.14	8.14	8.14	8.14	8.14	8.14	8.14	57	285
Week 8	8.14	8.14	8.14	8.14	8.14	8.14	8.14	57	342
Week 9	R&R	R&R	R&R	R&R	R&R	R&R	R&R	0	342

1. The Applicant, as the employer covered by the Agreement, provided written undertakings to address concerns raised by the Commission. Revised undertakings were provided following concerns raised by Ms Zilles and a copy of the revised undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 August 2024. The nominal expiry date of the Agreement is 19 August 2028.

COMMISSIONER

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Annexure A