Bankstown District Sports Club Ltd

[2014] FWCA 5238

[2014] FWCA 5238

FAIR WORK COMMISSION

DECISION

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

Bankstown District Sports Club Ltd
(AG2014/6731)

BANKSTOWN SPORTS CLUB EMPLOYEES ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 4 AUGUST 2014

Application for approval of the Bankstown Sports Club Employees Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bankstown District Sports Club Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bankstown Sports Club Employees Enterprise Agreement (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 450 employees, other than Club Managers, who are engaged at the applicant’s Club in Bankstown, New South Wales. 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 4 December 2013, and voting for the Agreement’s approval took place on 23-24 June 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 102 of the 121 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 July 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr N Howlin, Human Resources Manager identified the Registered and Licensed Clubs Award 2010 [MA000058], the Club Employees (State) Award [AN120136] and the Bowling and Golf Clubs Employees (State) Award [AN120079] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Howlinsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed late at night, early in the morning or when a meal break is not taken within five hours of starting a shift, the removal of some allowances and less beneficial severance entitlements for some employees. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher rates of pay, three hour minimum engagements for casuals, more generous overtime entitlements and enhanced compassionate, community service and safe family support leave. It was also said that other benefits included the abilities to cash out annual leave and to take annual leave on half pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 41 respectively, and a disputes resolution procedure at clause 38 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 1 August 2014, Mr P Willink of Clubs NSW appeared with Mr N Howlin and Mr A Kelly for the applicant and Mr C Acev 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. Mr Willink 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. He explained that the base rates of pay under the Agreement are to be increased by 3% on 1 July 2014, 1 July 2015 and 1 July 2016. However, in the event that the Commission’s Minimum Wage Review Decision passes on an increase of more than 3%, any difference to the increase in wages will be passed on the following year. Mr Acev supported the submissions of Mr Willink and in particular, agreed the Agreement met the BOOT.

[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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Bankstown Sports Club Employees Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 8 August 2014 and have a nominal expiry date of 8 August 2017.

DEPUTY PRESIDENT

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