Sodexo Remote Sites Australia Pty Ltd

[2015] FWCA 5457

[2015] FWCA 5457

FAIR WORK COMMISSION

DECISION

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

Sodexo Remote Sites Australia Pty Ltd
(AG2015/4167)

SODEXO REMOTE SITES & THE AUSTRALIAN WORKERS' UNION (ESSO OFFSHORE OPERATIONS) ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 AUGUST 2015

Application for approval of the Sodexo Remote Sites & The Australian Workers' Union (Esso Offshore Operations) Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sodexo Remote Sites Australia 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 Sodexo Remote Sites & The Australian Workers’ Union (Esso Offshore Operations) Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’) and three nominated Employee Bargaining Representatives. The Agreement is to cover 111 employees who are engaged in the provision of catering, cleaning, facility-management and associated services on offshore platforms in the Bass Strait owned by ESSO (ExxonMobil). 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 2 August 2013 and voting for the Agreement’s approval took place on 13 and 14 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by a third party provider, 84 of the 89 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Purves, General Manager of Human Resources and Industrial Relations identified the ‘Modern Hospitality Award’ (which I take as meaning the Hospitality Industry (General) Award 2010 [MA000009]) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Purvessaid 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, provision of accommodation and meal allowances and six weeks of annual leave for full time employees for each competed twelve months of service. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 37 and 33 respectively, and a disputes resolution procedure at clause 35 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 6 August 2015, Ms C Vinciullo, Solicitorappeared with Ms L Smillie and Mr C Purves for the applicant and Mr J Ward for the Union. Ms Vinciuollo 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. Ms Vinciullo explained that the increases to rates of pay due on 10 March 2015 are to be backpaid and that the Agreement provides for a further increase of 3% on 10 March 2016. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). However, the Declaration also took issue with the provision of annual leave and Mr Ward noted that the Agreement was not expressed as providing ‘one extra week’ for shiftworkers. In any event, I am satisfied that the annual leave entitlements are above those provided for in the Award and consistent with the Act. For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Sodexo Remote Sites & The Australian Workers’ Union (Esso Offshore Operations) Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 13 August 2015 and have a nominal expiry date of 27 April 2016.

DEPUTY PRESIDENT

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