AHS Hospitality (Australia) Pty Ltd t/a AHS Hospitality Australia

[2016] FWCA 6745

[2016] FWCA 6745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185—Enterprise agreement

AHS Hospitality (Australia) Pty Ltd t/a AHS Hospitality Australia
(AG2016/4297)

AHS HOSPITALITY (AUSTRALIA) AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 20 SEPTEMBER 2016

Approval of the AHS Hospitality (Australia) Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by AHS Hospitality (Australia) Pty Ltd t/a AHS Hospitality Australia (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the AHS Hospitality (Australia) Agreement 2016 (the ‘Agreement’). The Agreement was not negotiated with a Union or any Employee Bargaining Representatives. It is to cover all employees of the applicant (currently six) who perform contract cleaning services at hospitality venues. Currently, the employees all work at the Alpha Mosaic Hotel in Fortitude Valley, Queensland. 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 22 July 2016, and voting for the Agreement’s approval took place on 15 August 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all five employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 August 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Statutory Declaration in support of the application (Form F17), Ms Kakoschke, General Manager – Employee & Industrial Relations, identified the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Award’) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). The base wage rates, penalty rates and overtime rates in the Agreement are generally in line with those in the reference instrument. However, the Agreement entitles an employee to a paid day of leave on his or her birthday. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 8 respectively, and a dispute resolution procedure at clause 9 provides for conciliation and mediation by the Commission or an alternative mediator as agreed by the parties.

[4] At a hearing of the application on 19 September 2016, Mr W O’Donnell, solicitor, appeared with permission on behalf of the applicant, together with Ms de Bondt, Group Manager People and Culture. Mr O’Donnell submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. While the Agreement largely replicated the terms and conditions of the Award, Mr O’Donnell submitted that an enterprise agreement was able to be expressed in more easily understood language than the Award. This was of benefit to the employees to be covered by it.

[5] Having heard the applicant’s submissions and upon reviewing theterms of the pre-approval 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 they are relevant to this application, have been met. Accordingly, I approve a single-enterprise agreement known as the AHS Hospitality (Australia) Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 26 September 2016. It shall have a nominal expiry date of 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE421209  PR585585>