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

Printed by authority of the Commonwealth Government Printer

In the matter of Agnew Legal Pty Ltd, the applicant sought approval from the Fair Work Commission of the AM Fox Hotel Pty Ltd - Enterprise Agreement 2014. The respondent, AM Fox Hotel Pty Ltd, contested the application on various grounds. The case was heard by the Fair Work Commission, which was tasked with determining whether the agreement met the necessary legal standards for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the enterprise agreement contained all the mandatory terms required by the Fair Work Act and whether it complied with the good faith bargaining requirements. Specifically, the respondent argued that the agreement did not include provisions for minimum wage rates, penalty rates, and allowances, and that it failed to reflect the outcomes of genuine bargaining efforts. The applicant, on the other hand, contended that the agreement was comprehensive and that any omissions were either inadvertent or could be rectified through the approval process.

The Commission found that while the agreement largely met the mandatory requirements of the Fair Work Act, it did contain omissions in relation to certain minimum wage rates and penalty rates. However, the Commission also considered the context of the bargaining process and determined that the parties had engaged in genuine bargaining efforts. Taking into account the overall fairness and reasonableness of the agreement, the Commission approved the enterprise agreement with some modifications to address the identified deficiencies.

The Fair Work Commission approved the AM Fox Hotel Pty Ltd - Enterprise Agreement 2014 with certain modifications to ensure compliance with the mandatory terms of the Fair Work Act. These modifications included the incorporation of specific minimum wage rates and penalty rates. The respondent was directed to implement these changes within a specified timeframe. The Commission's decision provided a clear framework for the parties to address the issues raised and ensured that the enterprise agreement met the necessary legal standards for approval.

Agnew Legal Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established