Belmont 16 Foot Sailing Club Limited t/as Belmont 16 Footers

[2016] FWCA 3536

[2016] FWCA 3536

FAIR WORK COMMISSION

DECISION

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

Belmont 16 Foot Sailing Club Limited t/as Belmont 16 Footers
(AG2016/928)

BELMONT 16 FOOT SAILING CLUB ADMINISTRATION AND MANAGEMENT ENTERPRISE AGREEMENT 2016

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 31 MAY 2016

Application for approval of the Belmont 16 Foot Sailing Club Administration and Management Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Belmont 16 Foot Sailing Club Limited t/as Belmont 16 Footers (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Belmont 16 Foot Sailing Club Administration and Management Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 23 administration and management employees who are employed at the applicant’s Club in Belmont, New South Wales. I note that another enterprise agreement covers the other employees of the Club. 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 27 October 2015 and voting for the Agreement’s approval took place between 7 and 14 April 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 16 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 15 April 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr S Williams, CEO, 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 Williamssaid provides for some terms and conditions that are less beneficial than those under the Modern Award, including reduced notice to amend rosters, time off in lieu, rather than penalty rates paid for employees performing work on public holidays and reduced notice of termination. However, the Agreement provides for higher salaries and a maximum shift length of 12 hours for permanent employees. It was also said that the ability to cash out annual leave and personal leave in certain circumstances was another benefit. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 17 and 39 respectively, and a disputes resolution procedure at clause 34 erroneously refers to Fair Work Australia, which I take as providing for conciliation by the Commission.

[4] At a hearing of the application on 30 June 2016, Mr S Higgins of Clubs NSW,appeared with Ms K Rees and Mr G Maxwell for the applicant. Mr Higgins 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 Agreement provided increases to rates of pay of 2% or in accordance with the Commission’s Minimum Wage Review Decision, whichever is the higher, up to a maximum of 4%, on 1 July of each year during the nominal term of the Agreement. When asked about the absence of casual loading in the Agreement, Ms Rees confirmed that the Club did not employ any employees to be covered by this Agreement on a casual basis and it was not anticipated it would do so over the life of the Agreement.

[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 Belmont 16 Foot Sailing Club Administration and Management Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 6 June 2016 and have a nominal expiry date of 30 June 2020.

DEPUTY PRESIDENT

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