Barrier Social Democratic Club Limited

[2014] FWCA 2759

[2014] FWCA 2759

FAIR WORK COMMISSION

DECISION

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

Barrier Social Democratic Club Limited
(AG2014/5697)

BARRIER SOCIAL DEMOCRATIC CLUB LIMITED - MANAGEMENT ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 29 APRIL 2014

Application for approval of the Barrier Social Democratic Club Limited - Management Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the Barrier Social Democratic Club Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Barrier Social Democratic Club Limited - Management Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Club Managers Association of Australia (the ‘Union’) and is to cover 5 employees who are classified as Managers. 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 21 May 2013, and voting for the Agreement’s approval took place on 7 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 5 employees, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 15 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Chapman, Gaming Technician for the applicant, identified the Registered and Licensed Clubs Award, 2010 [MA000058] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Chapmansaid that the Agreement does contain some conditions that are less beneficial than those under the reference instrument. The penalties listed in Clause 17.3 and 17.4 of the Agreement do not increase with other rates for the duration of the Agreement and overtimes rates are less beneficial. The Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instrument, including increased rates of pay, increases in certain allowances including laundry and meal allowances, additional annual leave for Managers who work on Saturdays and Sundays, and enhanced severance benefits. The Agreement will backdate a pay increase to 1 July 2013, with further increases on 1 July 2014, 1 July 2015 and 1 July 2016 in accordance with the Commission’s Minimum Wage Review Decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 14 and 41 respectively, and a disputes resolution procedure at clause 38 provides for mediation and conciliation by the Commission.

[4] At a hearing of the application on 28 April 2014, Ms K Howe appearedfor the applicant, with Mr C Langton and Mr P Willink appearing on behalf of the applicant for the Registered Clubs Association of NSW, and Mr P Cooper 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. Mr Cooper supported the submissions of Mr Willink.

[5] Having heard the applicant’s 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 Barrier Social Democratic Club Limited - Management Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 5 May 2014 and have a nominal expiry date of 5 May 2016.

DEPUTY PRESIDENT

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