Sodexo Remote Sites Australia Pty Ltd

[2013] FWCA 9303

[2013] FWCA 9303

FAIR WORK COMMISSION

DECISION

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

Sodexo Remote Sites Australia Pty Ltd
(AG2013/11450)

SODEXO REMOTE SITES WESTERN AUSTRALIA AND NORTHERN TERRITORY OFFSHORE CONSTRUCTION AGREEMENT 2013-2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 3 DECEMBER 2013

Application for approval of the Sodexo Remote Sites Western Australia and Northern Territory Offshore Construction Agreement 2013 - 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 greenfields agreement to be known as the Sodexo Remote Sites Western Australia and Northern Territory Offshore Construction Agreement 2013-2015 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’) and concluded on 10 October 2013. The Agreement is to cover prospective employees who are engaged in the provision of hospitality services and facilities management on offshore construction projects in Western Australia and the Northern Territory. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees proposed to be covered by this Agreement has been fairly chosen.

[2] In addition, I am satisfied the Union is entitled to represent the industrial interests of a majority of the prospective employees who will be covered by the Agreement, in relation to work performed under the Agreement (s 187(5)(a)).

[3] In the Employer’s Declaration in support of the application (Form F20) Mr K Weston, Chief Operating Officer identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Westonsaid 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 instrument and that there are no less beneficial terms. The Agreement provides for significantly higher rates of pay, income protection insurance and accident make-up pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 24 and 25 respectively, and a disputes resolution procedure at clause 16 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 22 November 2013, Ms L Nunn appeared with Mr D Ostling, Ms S Jones and Ms A Lawton for the applicant and Mr S Price for the Union. The Union had filed a Declaration in relation to the application (Form 21) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Ms Nunn 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. She explained that the Agreement had been made so it was in a position to tender for contracts for the work in question. The applicant has no existing contracts. She also said that rates of pay are to be increased by 4% on 1 June 2014 and that no further increases were provided for in the Agreement as construction projects in this area are typically short term. Mr Price supported the submissions of Ms Nunn.

[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 182, 186, and 187, in so far as relevant to this application, have been met. In particular, pursuant to s 187(5)(b), I am satisfied the approval of the Agreement is in the public interest. Accordingly, I approve a greenfields agreement known as the Sodexo Remote Sites Western Australia and Northern Territory Offshore Construction Agreement 2013-205.Pursuant to s 54 of the Act, the Agreement shall operate from 29 November 2013 and have a nominal expiry date of 19 August 2015.

DEPUTY PRESIDENT

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