A.T Hotels (Bundaberg) Pty Ltd t/as Sugarland Tavern

[2014] FWCA 540

[2014] FWCA 540

FAIR WORK COMMISSION

DECISION

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

A.T Hotels (Bundaberg) Pty Ltd t/as Sugarland Tavern
(AG2013/10559)

A.T HOTELS (BUNDABERG) PTY LTD ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 23 JANUARY 2014

Application for approval of the A.T Hotels (Bundaberg) Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by A.T Hotels (Bundaberg) 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 A.T Hotels (Bundaberg) Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 39 employees who are employed at the Sugarland Tavern in Bundaberg, Queensland.

[2] The employees were last notified of their representational rights on 29 August 2013, and voting for the Agreement’s approval took place on 6 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 25 of the 33 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Armstrong, Managing Director, identified the Hospitality Industry (General) Award 2010 [MA000009], the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479] and the Liquor and Accommodation Industry - Hotels, Resorts and Gaming - (Managerial Staff) - Award 2003 [AP821899] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Armstrongsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the lack of provision for a job search entitlement or transfer to lower paid duties in redundancy situations, the removal of a number of allowances and the removal of penalty rates for work performed on weekends and public holidays. However, the allowances and penalty rates have been loaded into base rates of pay which are 12% higher for permanent employees and 37% higher for casual employees. Rates of pay are to be increased on 1 July 2014 by 2.5% or in accordance with the Consumer Price Index (2014 March Quarter year to date eight capital cities), whichever is the greater. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 16 January 2014, Mr D D’Arcy, Solicitor,appeared for the applicant. Mr D’Arcy 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 was similar to one previously approved by the Commission; See: Sunshine Coast Hotels Pty Ltd [2013] FWC 8357. The applicant had undertaken a comparative analysis of the rates of pay under the Agreement in comparison to those under the reference instruments, taking into account the current rosters. This resulted in a conclusion that all employees would be better off overall in comparison to the reference instruments.

[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 A.T Hotels (Bundaberg) Pty Ltd Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 23 January 2014 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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