DECISION

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

Anvera Pty Ltd t/as Cobar Motel Caravan Park and Dineen Tourism Management
(AG2015/3133)

ANVER PTY LIMITED ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2015

Application for approval of the Anvera Pty Limited Enterprise Agreement 2015..

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Anvera Pty ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as Anvera Pty Limited Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 12 employees who are employed at the applicant’s caravan park in Cobar, New South Wales.

[2] The employees were last notified of their representational rights on 26 April 2015, and voting for the Agreement’s approval took place on 11 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 8 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms K Dineen, Owner, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Dineen said that the Agreement provides for some terms and conditions that are less beneficial than those under the Award, including the removal of annual leave loading and some allowances. However, these have been ‘loaded’ into higher base rates of pay. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 6 respectively, and a disputes resolution procedure at clause 5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 6 July 2015, Ms L Whitfield, Solicitor,appeared for the applicant. Ms Whitfield 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. She explained that, pursuant to s 206 of the Act, base rates of pay were guaranteed not to fall below the base rates set out under the Modern Award.

[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 Anvera Pty Limited Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 13 July 2015 and have a nominal expiry date of 12 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Anvera Pty Ltd, trading as Cobar Motel Caravan Park, and Dineen Tourism Management brought an application before the Fair Work Commission for the approval of the Anvera Pty Limited Enterprise Agreement 2015. The dispute involved the terms and conditions of employment for certain employees within the motel caravan park. The Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement was genuinely a product of bargaining between the parties, whether it included all the mandatory terms required by the Fair Work Act, and whether the agreement was fair and reasonable in all its circumstances. The Commission also considered the implications of the Fair Work (Registered Organisations) Amendment Act 2013 and the Fair Work (Modern Awards and Other Instruments) Amendment Act 2014 on the application.

In reaching its decision, the Commission reviewed the evidence and submissions provided by both parties. It examined the process by which the agreement was negotiated, the content of the agreement, and its impact on the employees. The Commission determined that the agreement was genuinely a product of bargaining and contained all the mandatory terms required by the Act. Furthermore, the Commission concluded that the agreement was fair and reasonable, taking into account the specific circumstances of the parties and the industry. The Commission approved the Anvera Pty Limited Enterprise Agreement 2015, finding it to be compliant with the legislative requirements and in the best interests of the employees involved.

Anvera Pty Ltd t/as Cobar Motel Caravan Park and Dineen Tourism Management

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established