Ascents Hotel Pty Ltd t/as The Westin Melbourne

[2014] FWCA 1581

[2014] FWCA 1581

FAIR WORK COMMISSION

DECISION

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

Ascents Hotel Pty Ltd t/as The Westin Melbourne
(AG2014/364)

THE WESTIN MELBOURNE ENTERPRISE AGREEMENT 2012

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 6 MARCH 2014

The Westin Melbourne Enterprise Agreement 2012.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ascents Hotel Pty Ltd t/as The Westin Melbourne (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the The Westin Melbourne Enterprise Agreement 2012 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’). The Agreement is to cover 134 employees who are employed at the applicant’s hotel in Melbourne, Victoria. It does not cover salaried employees in management or supervisory positions. 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 24 September 2012, and voting for the Agreement’s approval took place on 11 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 77 of the 78 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 February 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms V Nagle, Director of Human Resources, identified the Hospitality Industry (General) Award 2010 [MA000009] and the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479]as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Naglesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the lack of provision for a laundry allowance, less generous community service leave entitlements and the removal of annual leave loading. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, a minimum twelve hour break between shifts and additional leave entitlements. It was also said that another benefit included the ability to cash out annual leave in specified circumstances. Rates of pay are to be increased by 3% on 1 October 2013 and 1 October 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 39 and 37 respectively, and a disputes resolution procedure at clause 11 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 3 March 2014, Ms D Nagle appeared with Ms D Watts for the applicant and Mr D Robson appeared with Ms L Stevens for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Ms Nagle 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 the increases to rates of pay due from 2012 and 2013 would be backpaid over a period of one or two months from the approval of the Agreement. She also offered undertakings to correct a mathematical error found in the induction rates of pay. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. Mr Robson supported the submissions of Ms Nagle.

[5] Having heard the parties’ 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, 188, 190, 191 and 192 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as The Westin Melbourne Enterprise Agreement 2012. Pursuant to s 54 of the Act, the Agreement shall operate from 10 March 2014 and have a nominal expiry date of 30 September 2015.

DEPUTY PRESIDENT

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