ASM Global (Cairns) Pty Ltd T/A Cairns Convention Centre

[2021] FWCA 6976

[2021] FWCA 6976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ASM Global (Cairns) Pty Ltd T/A Cairns Convention Centre
(AG2021/8060)

ASM GLOBAL (CAIRNS) PTY LTD ENTERPRISE AGREEMENT 2021

Amusement, events and recreation industry
COMMISSIONER HUNT	BRISBANE, 3 DECEMBER 2021

Application for approval of the ASM Global (Cairns) Pty Ltd Enterprise Agreement 2021.

[1] ASM Global (Cairns) Pty Ltd T/A Cairns Convention Centre (the Employer) has applied for approval of an enterprise agreement known as the ASM Global (Cairns) Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of The Australian Workers’ Union (AWU) and the employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. Neither the AWU nor the employee representatives provided any views.

[3] I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Agreement does not cover all of the employees of the Employer. On 10 November 2021, I raised the following concerns with the Employer:

“The Commissioner notes that the current agreement, AEG OGDEN (CAIRNS) PTY LTD – ENTERPRISE AGREEMENT 2016 applies to permanent full-time, part-time and also casual employees. The Agreement for approval applies only to casual employees.

Please provide information/evidence as to which employees would not be covered by the Agreement. The Commissioner requires further information relevant to s.186(3) of the Act.

Further, advise how the new provisions in Part 2-2, Division 4A would apply if a casual employee seeks conversion from casual employment to permanent employment.”

[6] On 12 November 2021, the Employer provided the following response:

“The Applicant notes that the Agreement covers event-based staff, all of which are engaged on a casual basis. The Agreement does not cover Managers and other professional employees who are engaged on a full-time or part-time basis. This includes Marketing, Finance, Business Development and Operations professionals.

The Applicant therefore submits that the group of employees covered by the Agreement has been fairly chosen on the basis that they are operationally and organisationally distinct.

As noted above, the Agreement applies to event-based employees only. Due to the nature of the Applicant’s operations, all event-based employees are engaged by the Applicant on a casual basis. This is because there is no established pattern in relation to the nature and frequency of events at the Centre. Accordingly, the availability of shifts at the Centre is subject to considerable fluctuation. This lack of predictability and certainty means the Applicant is unable to offer event-based employees full-time or part-time employment.

The Applicant notes there is no casual conversion clause expressly provided in the Agreement as there are no full-time or part-time classifications and associated entitlements conferred by the Agreement. However, in the unlikely circumstances in which an event-based employee did work a regular pattern of hours on an ongoing basis for a period of 6 months, it is noted that the NES precedence term at clause 1.7 of the Agreement would apply and invoke such an employee’s right to request conversion from casual employment to permanent employment. As permanent employees are not covered by the Agreement, conversion would occur on terms contained in the relevant Award.”

[7] On 17 November 2021, I requested that the Employer provide evidence as to the status of employees covered by the existing agreement, the AEG Ogden (Cairns) Pty Ltd – Enterprise Agreement 2016. On 18 November 2021, the Employer provided a witness statement of Ms Janet Hamilton, General Manager of the Employer. On 19 November 2021, the Employer filed a revised witness statement of Ms Hamilton, providing the following reasons for doing so:

“The statement identified that the Applicant did not employ any permanent employees who are covered under the existing agreement.

It has since been identified that there are few permanent salaried positions which may be classified under the existing agreement. Those positions include Sous Chef, Chief Steward, Security Coordinator, AV & Operations Coordinator, Facilities Supervisor and Culinary Services Supervisor.

The positions were not identified correctly in the statement because the Applicant does not consider these positions to be exclusively events-based. They are also remunerated under annualised salary arrangements and, as such, they were not immediately identified as being agreement covered.”

[8] The revised witness statement relevantly provided that:

“4. Cairns Convention Centre currently employs a total of approximately 168 employees. This is comprised of 26 full-time employees, 2 part-time employees and 140 casual employees.

5. The coverage of the Existing Agreement is provided at Clause 1.2 and states:-

“This Agreement shall apply to AEG Ogden (Cairns) Pty Ltd trading as the Cairns Convention Centre and all operations incidental to the Employer’s operations at the Cairns Convention Centre as the Employer (the “Employer”) and its Employees for whom classifications and rates of pay are prescribed by this Agreement engaged in or in connection with or incidental to all of the Employer’s operations at the Cairns Convention Centre including all facilities incidental thereto, and no other Award or Agreement shall apply.”

6. The Existing Agreement is therefore applicable to all event-based employees engaged by Cairns Convention Centre.

7. The coverage of the proposed Agreement reflects the coverage of the Existing Agreement, with the exception that it is limited to employees engaged on a casual basis.

8. The coverage of the proposed Agreement is limited to casual employees in order to reflect the business practices of Cairns Convention Centre. Cairns Convention Centre employs all event-based employees on a casual basis in order to meet its operational requirements. The variability associated with the event and recreation industry means that regular and ongoing hours of work cannot be guaranteed for event-based employees.

9. All 140 employees engaged by Cairns Convention Centre on a casual basis fall within the classifications prescribed by the Existing Agreement and are therefore, at present, covered by the Existing Agreement.

10. The majority of employees currently engaged by Cairns Convention Centre on a full-time or part-time basis occupy managerial and/or professional positions. These positions include but are not limited to the Culinary Services Director, Operations Director, Business Development Director, Marketing Manager and Financial Controller. These positions do not fall within the classifications and rates of pay prescribed by the Existing Agreement or the proposed Agreement due to the high-level leadership and professional expertise required by their roles.

11. There are approximately 9 employees engaged by Cairns Convention Centre on a full-time basis whose positions could fall within the classifications prescribed by the Existing Agreement, despite not being specifically engaged to only work events. These employees occupy the following positions:

•  1 x Sous Chef

•  1 x Chief Steward

•  2 x Culinary Services Supervisor

•  2 x Security Coordinators

•  2 x Facilities Supervisors

•  1 x AV & Operations Coordinator

12. All part-time and full-time employees of Cairns Convention Centre are paid a salary, which is substantially more beneficial than the rates of pay prescribed by the Existing Agreement.

13. The part-time and full-time employees identified in paragraph 11 will continue to fall within the coverage of the Existing Agreement. However, casual event-based employees fall within the coverage of the proposed Agreement on the basis that they are a distinct organisational and operational group.”

[9] On 24 November 2021, I issued the following correspondence to the Employer, the employee bargaining representatives, and the AWU:

“Reference is made to the witness statement of Ms Hamilton dated 19 November 2021.

The Commissioner advises that given that nine employees covered by the existing agreement have been excluded from coverage of the proposed agreement, she wishes to obtain their views as to whether the employees covered by the proposed agreement have been fairly chosen pursuant to s.186(3) and 186(3A) of the Act, produced below:

186  When the FWC must approve an enterprise agreement—general requirements

Requirement that the group of employees covered by the agreement is fairly chosen

(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

The Applicant is directed to forward this email to the nine affected employees by no later than 4:00PM Wednesday, 24 November 2021.  The employees are encouraged to provide their views by writing to Commissioner Hunt [by email].

The Commissioner notes that the existing agreement has nominally expired and the last pay increase afforded to employees covered by the existing agreement was on 1 July 2019. 

The affected employees should provide views by no later than 4:00PM AEST Wednesday, 1 December 2021.     The Applicant and the AWU are welcome to provide any submissions relevant to whether the employees to be covered by the proposed agreement have been fairly chosen by 4:00PM AEST Wednesday, 1 December 2021.”

[10] On 25 November 2021, the Employer confirmed that it had forwarded the above correspondence to affected employees.

[11] On 1 December 2021, the Employer provided the following response:

“It is noted that the group of employees chosen to be covered by the proposed Agreement are casual employees performing work in one of the classifications in the Agreement. There are currently 140 casual employees engaged by the Applicant. All 140 casual employees would be covered by the proposed Agreement.

The Applicant submits that the employees to be covered by the Agreement are engaged to only work at events held at the Centre as the Applicant’s business is predominantly event driven and is subject to considerable fluctuation. There is no established pattern in relation to the nature and frequency of events at the Centre. Casual employees are not engaged to undertake non-event related duties. The group of employees are operationally and organisationally distinct in that they only perform work in classifications contemporaneous with the holding of an event.

The proposed Agreement does not cover employees of the Applicant who are engaged on a full-time or part-time basis. There are currently 26 full-time employees engaged by the Applicant in managerial, supervisory and/or professional positions. These positions include General Manager, Marketing Manager, Executive Assistant, Project Manager, Financial Controller, Assistant Accountant, Sous Chef, Chef de Partie, Chief Steward, Culinary Services Director, Culinary Services Supervisor (2), Operations Director, Facilities Supervisor (2), Security Coordinator, Venue Presentation Supervisor, Audio Visual Technical Manager, IT Supervisor, Senior Audio-Visual Supervisor, Audio Visual & Operations Coordinator, Business Development Director, National Business Development Manager, Bid Strategy Manager, Business Development Executive and Event Manager. There are currently 2 part-time employees engaged by the Applicant in Researcher positions.

The roles undertaken by permanent employees are operationally and organisationally distinct from those to be covered by the Agreement in that they are managerial, supervisory or professional in nature, and are principally concerned with the running of the Applicant’s operations rather than being particular to an event. They are also remunerated under annualised salary arrangements in recognition of their distinct operational functions.

Accordingly, the Applicant submits that the group of employees to be covered by the proposed Agreement have been fairly chosen in accordance with the requirements of the Act.”

[12] Neither the AWU nor the employee bargaining representatives provided any views.

[13] Taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen for the reason that the employees to be covered by the Agreement are event staff employed on an ad hoc, casual basis, and the other employees associated with events are full-time skilled workers I am satisfied the group of employees covered by the Agreement are operationally distinct.

[14] The AWU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the AWU.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 December 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE514151  PR736428>

ANNEXURE A