Agnew Legal Pty Ltd

[2017] FWCA 686

[2017] FWCA 686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Agnew Legal Pty Ltd
(AG2017/11)

RIVERLAND HOSPITALITY PTY LTD - ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 1 FEBRUARY 2017

Application for approval of the Riverland Hospitality Pty Ltd - Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Agnew Legal Pty Ltd on behalf of Riverland Hospitality 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 Riverland Hospitality Pty Ltd - Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover all employees, excluding Award-free employees, such as Department Heads or Executive employees, numbering 18, who are engaged in the applicant’s hotel on the Gold Coast, Queensland (formerly the old ‘Islander’ Hotel in Surfers’ Paradise). 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 25 November 2016, and voting for the Agreement’s approval took place on 22 December 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 11 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 January 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr W Pitchforth, Director identified the Hospitality Industry (General) Award [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Pitchforth said that while the Agreement does not provide for penalty rates for work performed on weekends or public holidays, these rates have been ‘loaded’ into higher base rates of pay (between 11% to 13% higher). Mr Pitchforth also said that there were a number of other provisions which had been incorporated into the ‘loaded’ rate of pay, including no meal or split shift allowances and reduced overtime penalties.

[4] At a hearing of the application on 25 January 2017, Mr C Agnew, Solicitorappeared for the applicant with Mr Pitchforth. 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 Pitchforthexplained that the hotel is currently undergoing major refurbishment with plans to provide for a 68 room, four and a half star hotel, along with a 200 bed backpackers’ accommodation. Mr Pitchforth explained the ordinary rosters for employees. He said that although the hotel is open until 5am, the only employees who are rostered on during this time are Gaming Managers in the gaming facility. The reason for this is that they are suitably qualified to be able to make significant pay-outs to (lucky) customers. Moreover, each manager receives a salary which is sufficiently high enough to fall into the ‘salary absorption’ categories in the reference instrument, which automatically includes overtime and other penalty rates (they each receive between $60,000.00-$80,000.00pa). These are different to individual flexibility agreements and can be taken into account when assessing whether an agreement meets the BOOT. However, all other employees perform the majority of their hours during times where penalty rates would not be applicable under the reference instrument. On balance, 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.

[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 Riverland Hospitality Pty Ltd - Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 1 February 2017 and have a nominal expiry date 1 September 2020.

POSTSCRIPT

[6] After approving the Agreement on 25 January 2017, Ms E Beljak, of United Voice sent correspondence to the Commission on 30 January 2017, in which she raised concerns with the Agreement. In particular, Ms Beljak submitted that clause 1.6 of the Agreement is an impermissible ‘opt-out’ clause and that the increases in rates of pay may not be sufficient to satisfy the BOOT, if certain rosters (weekends only) are worked. My associate provided a copy of the correspondence to Mr Agnew on 30 January 2017, and Mr Agnew responded later that day refuting these concerns. The applicant also provided an undertaking in relation to clause 1.6. However, given I held no concern in relation to the Agreement at the time it was approved, s190 of the Act cannot be enlivened, post approval. Therefore, the undertaking is unnecessary and does not form part of the Agreement. However, I accept Mr Agnew’s description of how the clause is intended to operate. As to the BOOT, I refer to the submission of Mr Pitchforth set out above (para 4). In any event, having approved the Agreement, the Commission cannot vary or revoke the decision, pursuant to s 603(3) of the Act.

DEPUTY PRESIDENT

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