Spotless Facility Services Proprietary Limited

[2013] FWCA 5337

[2013] FWCA 5337

FAIR WORK COMMISSION

DECISION

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

Spotless Facility Services Proprietary Limited
(AG2013/1947)

SPOTLESS (ALCOA SITES) ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 5 AUGUST 2013

Application for approval of the Spotless (Alcoa Sites) Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Spotless Facility Services Proprietary Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Spotless (Alcoa Sites) Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’). The Agreement is to cover 29 employees who perform catering functions at Alcoa sites in satisfaction of the applicant’s contract to provide such services. 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 24 September 2012, and voting for the Agreement’s approval took place between 1 - 2 July 2013. The time limits under s 181(2) of the Act are thereby satisfied. In an online vote, all 15 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J Douglas, General Manager, Human Resources, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Douglassaid that the Agreement does contain some terms and conditions that are less beneficial than those under the Modern Award, including a shift penalty allowance of $1.29 per hour for work performed between 7:00am and 7:00pm, a less generous meal allowance and the removal of a number of other allowances. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of, those under the Modern Award, including higher rates of pay, a long service allowance of $3.00 per week for employees with more than 12 years service, a more generous laundry allowance and thirteen weeks long service leave for employees with more than ten years continuous service. Long service leave is also to be paid out to employees with more than seven years service at a pro-rata rate upon termination of employment for reasons other than misconduct. Rates of pay are to be adjusted by 3% on 1 January 2013, and 1 January 2014 and 2.75% on 1 January 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 8 and 9 respectively, and a disputes resolution procedure at clause 10 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 24 July 2013, Mr J Douglas appeared for the applicant and Ms E Douglas, for the Union. 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). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Douglas 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 explained that in the event of redundancies after the loss of a contract, the applicant would enter into a process of redeployment of the employees and would also enter into discussions with the successful contractor to determine whether they would be in a position to employ the applicant’s employees. If, following that process, it is necessary to make employees redundant, they are to be paid severance pay in accordance with the National Employment Standards or under the relevant Agreement, whichever is more favourable.

[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 Spotless (Alcoa Sites) Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 31 July 2013 and have a nominal expiry date of 31 December 2015.

DEPUTY PRESIDENT

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