Belmont 16 Foot Sailing Club Ltd

[2014] FWCA 7246

[2014] FWCA 7246

FAIR WORK COMMISSION

DECISION

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

Belmont 16 Foot Sailing Club Ltd
(AG2014/9206)

BELMONT 16FT SAILING CLUB EMPLOYEES ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 16 OCTOBER 2014

Application for approval of the Belmont 16ft Sailing Club Employees Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Belmont 16 Foot Sailing 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 Belmont 16ft Sailing Club Employees Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 112 employees, other than Managers and administration employees, who are employed at the applicant’s Club in Belmont, 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 13 may 2014, and voting for the Agreement’s approval took place between 11 and 14 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 17 of the 24 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms K Rees, Human Resources Manager identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Reessaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of late and early work penalty rates and some non-applicable allowances. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, minimum engagements of three hours for full time employees and an additional annual leave loading for casual employees employed prior to the commencement of this Agreement. Rates of pay are to be increased annually during the nominal term of the Agreement by 3% or in accordance with the Commission’s Minimum Wage Review decisions, whichever is the greater. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 15 and 39 respectively, and a disputes resolution procedure at clause 35 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 13 October 2014, Mr P Willink of the Registered Clubs Association of New South Wales,appeared with Ms K Rees 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. While the Union had indicated in its F18 declaration that it supported the approval of the Agreement, it raised concerns that the employer could direct an employee to attend a doctor of the employer’s choice in certain circumstances and to undergo drug and alcohol testing where the employer formed a reasonable view that the employee was affected by alcohol or drugs. Mr Acev submitted that the latter of these requirements was excessive and unnecessarily invasive. Mr Willink said that these provisions allowed the employer to make a lawful and reasonable request in limited circumstances. Mr Acev also raised the Union’s concerns as to the lack of early and late penalties, although he did not submit that the Agreement did not meet the BOOT. Mr Willink submitted that while there were some shifts which may result in an employee being slightly worse off, the weighted base rate of pay offset for any small loss over the course of the week.

[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 Belmont 16ft Sailing Club Employees Enterprise Agreement 2014.Pursuant to s 54 of the Act and in accordance with the request of the applicant, the Agreement shall operate from 22 October 2014 and have a nominal expiry date of 21 October 2018.

DEPUTY PRESIDENT

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