Barooga Sports Club Ltd

[2015] FWCA 6962

[2015] FWCA 6962

FAIR WORK COMMISSION

DECISION

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

Barooga Sports Club Ltd
(AG2015/5059)

BSC ENTERPRISE AGREEMENT 2015

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 9 OCTOBER 2015

Application for approval of the BSC Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Barooga 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 BSC Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 130 employees, other than Club Managers, who are employed at the applicant’s Club in Barooga, 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 12 March 2015 and voting for the Agreement’s approval took place on 18 September 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 52 of the 60 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 September 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Ryan, Chief Executive Officer, 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 Ryan said that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including payment of higher duties for the amount of time worked in that higher capacity, the removal of late and early penalty rates and the removal of broken shift allowances. However, the Agreement provides for a number of terms and conditions that are in excess of, or more beneficial than those under the reference instruments, including higher rates of pay, more generous redundancy entitlements, a first aid allowance and a paid annual meeting with industrial representatives. Rates of pay are to be adjusted annually throughout the operation of the Agreement by application of a set index factor to relevant rates in the Modern Award. The Agreement provides for the mandatory flexibility and consultation terms at Schedules D and E respectively, and a disputes resolution procedure at Schedule C provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 2 October 2015, Mr P Norrie of Adaptix Pty Ltd appeared with Mr G Ryan for the applicant and Mr C Acev for the Union. Mr Norrie 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. The Union had filed a Declaration in relation to the application (Form 18) 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. However, the Union did not support the approval of the Agreement and drew the Commission’s attention to the manner in which rates of pay are to be adjusted, the lack of payment of early and late work penalties and the removal of casual annual leave loading. At my request, Mr Norrie provided extensive comparative calculations to the Commission. Having considered these, I am satisfied that the Agreement passes 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 BSC Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 9 October 2015 and have a nominal expiry date of 9 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, AE416089  PR572741>