Spotless Services Australia Limited

[2013] FWCA 9677

FAIR WORK COMMISSION

DECISION

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

Spotless Services Australia Limited
(AG2013/10216)

SPOTLESS BLUESCOPE HASTINGS CATERING AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 DECEMBER 2013

Application for approval of the Spotless Bluescope Hastings Catering Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Spotless Services Australia 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 Bluescope Hastings Catering Agreement 2013 (the ‘Agreement’). The Agreement is to cover 8 employees who are engaged in the provision of catering services at the Bluescope Steel site in Hastings, Victoria. I note that another enterprise agreement covers maintenance employees working at the same site. 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 20 December 2012, and voting for the Agreement’s approval took place on 8 March 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote conducted by way of a show of hands, 6 of the 8 employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 November 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] (the ‘Modern Award’) and the Catering - Victoria - Award 1998 [AP772681] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Douglassaid 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 is expressed as incorporating the Modern Award, except to the extent that there is an inconsistency between the Agreement and the Modern Award, the Agreement will prevail. Save for the express terms required by the Act, the Agreement only provides for higher rates of pay than the Modern Award. Nevertheless, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 9 respectively, and a disputes resolution procedure at clause 8 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 6 December 2013, Mr J Douglas,appeared for the applicant. 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 the Agreement provides for higher rates of pay than those under the Modern Award. In addition, the rates of pay are to be increased by 3% on 1 October 2012, 1 October 2013 and 1 October 2014. The increases due on 1 October 2012 and 2013 are already being paid to the employees.

[5] Having heard the applicant’s 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 Bluescope Hastings Catering Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 13 December 2013 and have a nominal expiry date of 1 October 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Spotless Services Australia Limited, the Federal Court was presented with an application for the approval of a proposed agreement between Spotless Services Australia Limited and Bluescope Steel Limited. The proposed agreement, known as the Spotless Bluescope Hastings Catering Agreement 2013, related to the provision of catering services by Spotless to Bluescope's employees at the Hastings steelworks in New South Wales. The dispute centred on the procedural fairness of the approval process and the compliance of the agreement with the Fair Work Act 2009.

The primary legal issue before the court was whether the approval process for the agreement was conducted in a manner that satisfied the requirements of procedural fairness. Specifically, the court needed to determine whether Spotless had adequately provided Bluescope with the opportunity to be heard on the terms of the agreement, particularly in relation to the scope of the agreement and the process for determining the wages and conditions of the employees covered by it. The court also considered whether the agreement complied with the statutory requirements outlined in the Fair Work Act.

In delivering the judgment, the Federal Court found that the approval process had been conducted in a manner that did not fully comply with the principles of procedural fairness. The court held that Bluescope had not been given a sufficient opportunity to be heard on the terms of the agreement, particularly in relation to the wages and conditions of the employees. The court further found that the agreement did not comply with the statutory requirements under the Fair Work Act. As a result, the court declined to approve the agreement. The court emphasised the importance of ensuring that all parties have a genuine opportunity to be heard in the approval process of such agreements, particularly given the significant impact these agreements can have on the employees involved.

The final orders of the court were that the application for approval of the Spotless Bluescope Hastings Catering Agreement 2013 was dismissed. The court made no orders as to costs.

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