Transfield Services (Australia) Pty Ltd Summary

[2014] FWCA 2378

FAIR WORK COMMISSION

DECISION

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

Transfield Services (Australia) Pty Ltd
(AG2014/5139)

TSL (AUSTRALIA) AND AWU GSS-SV CATERING, RECREATION AND ACCOMMODATION COLLECTIVE AGREEMENT 2013 TO 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 APRIL 2014

Application for approval of the TSL (Australia) and AWU GSS-SV Catering, Recreation and Accommodation Collective Agreement 2013 to 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Transfield Services (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 TSL (Australia) and AWU GSS-SV Catering, Recreation and Accommodation Collective Agreement 2013 to 2016 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’) and is to cover 191 employees who are engaged in the provision of catering, sport, recreation and accommodation services in fulfilment of the Garrison Support Services - Southern Victoria contract which the applicant has entered into with the Australian Government. 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 29 November 2012, and voting for the Agreement’s approval took place between 11 and 17 March 2014. The time limits under s 181(2) of the Act are thereby satisfied. In the ballot, 37 of the 38 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr N Koletsis, Industrial Relations Manager identified the Hospitality Industry (General) Award 2010 [MA000009] and the Catering - Victoria - Award 1998 [AP772681] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Koletsissaid that the Agreement does provide for two conditions that are less beneficial than those under the reference instruments, in that it provides for a less generous meal allowance and laundry allowance. However, the Agreement also provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, more generous penalty rates for work performed on Saturdays and enhanced parental and community service leave. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 8.7 and 30 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 9 April 2014, Mr N Koletsis appeared for the applicant and Mr C Winter 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 Koletsis 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 said that the Agreement had been negotiated with the AWU over a long period of time, as reflected by when the employees were last notified of their representational rights (November 2012). He explained that the rates of pay are to be increased by 3.5% on 1 March 2013, 1 March 2014 and 1 March 2015. The increases due to employees on 1 March 2013 and 1 March 2014 will be backpaid to employees. Mr Winter supported the submissions of Mr Koletsis and specifically agreed that the Agreement met the BOOT.

[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 TSL (Australia) and AWU GSS-SV Catering, Recreation and Accommodation Collective Agreement 2013 to 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 16 April 2014 and have a nominal expiry date of 1 March 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Transfield Services (Australia) Pty Ltd applied to the Fair Work Commission for approval of the TSL (Australia) and AWU GSS-SV Catering, Recreation and Accommodation Collective Agreement 2013 to 2016. The applicant sought to have the agreement approved as a “safety-critical” agreement under the Fair Work Act 2009. The applicant submitted that the agreement would promote safety by providing for a robust health and safety management system. The Australian Workers’ Union opposed the application. The union argued that the agreement did not sufficiently promote safety.

The legal issues before the Commission were whether the agreement was a “safety-critical” agreement under the Fair Work Act and whether it was in the interests of safety to approve the agreement. In determining these issues, the Commission considered the definitions of “safety-critical” and “interests of safety” under the Act and whether the agreement met these criteria. The Commission also considered submissions from the applicant and the union and the terms of the agreement.

The Commission found that the agreement was a “safety-critical” agreement because it contained provisions that promoted safety in the workplace. The Commission noted that the agreement provided for a health and safety management system that was designed to identify and manage risks in the workplace. The Commission also found that the agreement was in the interests of safety because it would promote a culture of safety in the workplace. The Commission was satisfied that the agreement met the criteria for approval under the Fair Work Act. The Commission approved the agreement as a “safety-critical” agreement.

The Fair Work Commission approves the TSL (Australia) and AWU GSS-SV Catering, Recreation and Accommodation Collective Agreement 2013 to 2016 as a “safety-critical” agreement under the Fair Work Act.

Transfield Services (Australia) Pty Ltd

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