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

[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

Printed by authority of the Commonwealth Government Printer

The case involved A.T Hotels (Bundaberg) Pty Ltd trading as Sugarland Tavern and the Fair Work Commission. The dispute centred on the approval of the A.T Hotels (Bundaberg) Pty Ltd Enterprise Agreement 2013. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues the court needed to resolve were whether the agreement was genuinely bargained, free from coercion, and contained the necessary minimum terms and conditions as mandated by the Fair Work Act. Specifically, the court had to consider whether the agreement was made in good faith, if it provided for the proper classification of employees, and if it complied with the minimum standards set out in the Act. Additionally, the court needed to ensure that the agreement did not undermine the protections provided by the Fair Work Act to employees.

In examining the agreement, the Commission found that it was genuinely negotiated between the employer and the employees' representative, and it contained all the required minimum terms and conditions. The Commission determined that the agreement was made in good faith and was not coercive. It also found that the agreement properly classified employees and adhered to the minimum standards stipulated in the Fair Work Act. Consequently, the Commission approved the enterprise agreement, confirming that it met all the legal criteria for approval.

The Commission's decision to approve the enterprise agreement was based on the evidence presented, which demonstrated that the agreement was a fair and reasonable outcome of genuine negotiations between the parties. The Commission was satisfied that the agreement would not undermine the protections provided to employees by the Fair Work Act. The approval of the agreement was therefore deemed to be in the best interests of both the employer and the employees.

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