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

In the Fair Work Commission, AHS Hospitality (Australia) Pty Ltd, trading as AHS Hospitality Australia, sought approval of the AHS Hospitality (Australia) Agreement 2016. The application was brought pursuant to section 234 of the Fair Work Act 2009. The application arose from negotiations between the employer and the Australian Licensed Employees' Association, which was the registered trade union representing the employees of the employer. The union submitted that the proposed agreement contained a number of unlawful terms and conditions. The employer submitted that the proposed agreement was lawful and should be approved.

The commission considered whether the proposed agreement contained unlawful terms and conditions. The commission noted that the proposed agreement contained a term that provided for an employee to be required to sign a "Workplace Behaviour Policy" and "Code of Conduct" which outlined the employer's expectations of the employee's conduct both at work and outside of work. The union submitted that this term was unlawful as it went beyond what was necessary to protect the employer's business and was overly broad in its application. The commission noted that while the term was broad in its application, the commission was not satisfied that the term was unlawful. The commission also considered whether the proposed agreement contained unlawful terms in relation to the payment of wages. The commission found that the proposed agreement was lawful in this regard and should be approved.

Accordingly, the commission approved the AHS Hospitality (Australia) Agreement 2016. The commission noted that the employer should provide a copy of the approved agreement to all employees, and that the agreement would be registered and uploaded to the Register of Approved Agreements on the Fair Work Commission's website.

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

DECISION

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