Application by Camp Somerset Pty Ltd (ACN: 075466081)

[2016] FWC 2235

[2016] FWC 2235

DECISION

Fair Work Act 2009
s.185 - Application for approval of a multi-enterprise agreement
Camp Somerset Pty Ltd
(AG2015/7087)
COMMISSIONER CAMBRIDGE	SYDNEY, 8 APRIL 2016

Application for approval of the Camp Somerset and The Urban Challenge Enterprise

Agreement 2015.

[1]        An application has been made for approval of an enterprise agreement known as the

Camp Somerset and The Urban Challenge Enterprise Agreement 2015 (the Agreement). The

application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). The

application was made by Camp Somerset Pty Ltd (Camp Somerset). The Agreement is a

multi-enterprise agreement.

[2]        The application was lodged at Sydney on 18 December 2015. The application

included a Statutory Declaration of Paul Colagiuri made on behalf of Camp Somerset and

dated 17 December 2015 (the Declaration). The Declaration stated that the Agreement was

made on 14 December 2015. Therefore the application was made within the 14 day lodgement

time limit established by subsection 185 (3) of the Act.

[3]        The application for approval was listed for Hearing on 17 February 2016, at which

time Mr M Taylor from HMT Consulting (HMT) appeared by telephone as the applicant’s

representative. Mr P Colagiuri attended in person, and he advised that he was the general

manager of both Camp Somerset and The Urban Challenge Pty Ltd (Urban Challenge), the

other employer covered by the Agreement.

[4]        During the proceedings held on 17 February, the Fair Work Commission (the

Commission) identified various issues relating to aspects of the application including the

contents of certain terms contained in the Agreement, which were of concern to the

Commission. The Commission noted that the Agreement was similar to an enterprise

agreement which had been the subject of a previous application in matter AG2015/1282 (the

first application). The first application was discontinued.

[5]         The concerns that were identified by the Commission during the proceedings on 17

February were similar to many of the concerns that had been raised in respect of the first

application. However, the Commission noted that a number of the concerns which had been

identified during proceedings in the first application had been rectified in the terms contained

in the Agreement. Nevertheless, the Commission identified various on-going concerns in

respect to terms contained in the Agreement, many of which had been identified during the

proceedings in the first application. The applicant was invited to further consider the concerns
[2016] FWC 2235

which had been raised by the Commission and in due course, make comment or further

submissions and or advance any proposed rectification of the identified concerns.

[6]        On 11 March 2016, HMT, acting as the representative of the applicant, provided the

Commission with written submissions and three proposed undertakings as further material in

support of the application. The three proposed undertakings sought to address three specific

concerns relating to, respectively; specification of a default superannuation fund; and, an

additional allowance for certain work performed beyond 7 pm; and, an increase of 30 cents

per hour in particular minimum rates contained in clause 41 of the Agreement. The written

submissions sought to address some, but not all, of the concerns that were raised during the

proceedings held on 17 February.

[7]        The Commission has carefully considered the further material in support of the

application. Certain aspects of the concerns raised by the Commission in the Hearing held on

17 February have been potentially addressed by the three proposed undertakings. However,

many concerns have not been satisfactorily addressed by either the proposed undertakings or

the further submissions made in support of the application. These concerns primarily relate to

the requirement for the Commission to be satisfied that the Agreement would pass the better

off overall test as required by subsection 186 (d) and section 193 of the Act.

[8]        Some particular concerns which remain but are not limited to:

	The very broad scope of clause 8, Hours of Work, wherein clause 8.1 states:
“The ordinary spread of hours for employees covered by this Agreement shall be
Midnight to Midnight, Monday to Sunday, inclusive.”
	Clause 19.3; which relevantly states:
“To facilitate staff development, in addition to training arising under sub-
Clauses 19.1 and 19.2 (above), voluntary workshops and familiarisation
programs will be staged by the Company at no cost to staff members.
19.3.1 Attendance at such voluntary workshops and or programs shall be
unpaid.”
	Clauses 31.2, 36.6 and 40.1; each of which prescribes that the averaging of
ordinary hours of 38 per week shall be determined over a 52 week period.
	Clause 32.2; which provides for an annualised reconciliation of wages paid to

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salaried employees.

	Clause 36.1; which, inter alia, establishes prescriptions for ordinary hours to be
worked “up to a maximum of fourteen (14) hours in any day mid-night[sic] to
midnight”.
	The minimum rates of pay prescribed in Schedule 1 which, in respect to a level
1 employee working a notional 10 hour day, provides for a daily payment of
$189.10, while the comparative payment applicable under the Miscellaneous
Award 2010 [MA000104] would be $194.68.
	The fixed overtime rate of $49.40 prescribed in Schedule 1 at paragraph (iii).

[2016] FWC 2235

	Clause 39.3; which provides that casual employees may be employed for up to
12 ordinary hours each day, whilst the comparative provisions of sub-clause
10.4 of the Amusement, Events and Recreation Award 2010 [MA000080]
stipulates that casual employees may be employed for up to 10 ordinary hours
each day.
	The absence of Sunday and Public holiday rates other than in respect to clause
46.4 which is confined to support staff.

 Clause 41; which, even when adjusted by the 30 cents per hour increase

suggested in the proposed undertakings, establishes that a Level 1 employee

working a notional 10 hour shift, would be paid $193.00, whilst the comparative

payment under the Amusement, Events and Recreation Award 2010

[MA000080] would be $195.70.

	The signatory page of the Agreement contains the following curious inclusion:
“In accordance with the requirements of section 185 (2) (a) the Fair Work Act
2010, I confirm that:

a. I am an employee intended to be covered by this Agreement; and

b. I was authorised to co-sign this Agreement for and on behalf of my fellow

employees

(incorporated the date and circumstances that gave rise to the authorisation;

e.g. by a meeting of employees held on xxx date).”

 It should be further noted that the submissions provided by HMT also

identified that, in one particular “In-field Scenario’ that was identified on page

9, a casual employee working particular arrangements that included Saturdays

and Sundays would be $18.62 better off under the relevant reference

instrument rather than the Agreement.

[9]        The Commission has given consideration to providing the applicant with a further

Hearing and other opportunity as a means to further attempt to redress the various on-going

concerns. However, upon reflection, the proposed undertakings or any subsequently

developed permutation of these or other Undertakings which could, on any objective

contemplation, provide rectification of the concerns that have been identified, would result in

substantial changes to the Agreement.
[2016] FWC 2235

[10]      Consequently, any objectively determined prognosis for the application would create a

circumstance that offended subsection 190 (3) (b) of the Act. In such circumstances, and in

the interests of efficiency and avoidance of additional costs to the applicant, as the application

is not capable of satisfying the relevant requirements of ss.186, 187, 190 and 193 of the Act,

regrettably in this particular circumstance, the application must be dismissed.

COMMISSIONER

Appearances:

Mr M Taylor of HMT Consulting together with Mr P Colagiuri appeared for Camp Somerset

Pty Ltd.

Hearing details:

2016.

Sydney:

February, 17.

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See the Full Bench Decision in CEPU v Main People [2015] FWCFB 4467, in particular at paragraphs [38] and [39].