Agnew Legal Pty Ltd

[2015] FWCA 1066

[2015] FWCA 1066

FAIR WORK COMMISSION

DECISION

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

Agnew Legal Pty Ltd
(AG2015/200)

AM FOX HOTEL PTY LTD - ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 FEBRUARY 2015

Application for approval of the AM Fox Hotel Pty Ltd - Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Agnew Legal 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 AM Fox Hotel Pty Ltd - Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover all employees who are employed at AM Fox Hotel Pty Ltd.

[2] The employees were last notified of their representational rights on 31 December 2014 and voting for the Agreement’s approval took place on 28 January 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 45 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 3 February 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Rohan Tropley, Hotel Manager, identified the Hospitality Industry (General) Award 2014 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Tropleyprovided a table comparing the Modern Award with the proposed Agreement. He identified that there were some terms that were less beneficial than those contained within the Modern Award, but the Agreement still satisfied the BOOT. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. 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 2.4 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 10 February 2015, Mr Agnew, Solicitor,appeared for the applicant. Mr Tropley was also present at the hearing. Mr Agnew 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. Mr Agnew advised that due to a timing issue, the rates of pay appearing at cl 3.2.1 had not taken account of the last Minimum Wage Review decision of the Commission. He later provided an undertaking reflecting the new rates of pay which the applicant proposed. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the AM Fox Hotel Pty Ltd - Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 17 February 2015 and have a nominal expiry date of 1 August 2018.

DEPUTY PRESIDENT

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