Belmont 16ft Sailing Club Limited T/A Belmont 16ft Sailing Club Limited

[2024] FWC 1891

[2024] FWC 1891

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Belmont 16ft Sailing Club Limited T/A Belmont 16ft Sailing Club Limited

(AG2024/1907)

DEPUTY PRESIDENT SLEVIN SYDNEY, 18 JULY 2024

Application for approval of the Belmont 16FT Sailing Club Limited Employees Enterprise Agreement 2024

1. An application has been made by Belmont 16ft Sailing Club Limited pursuant to s. 185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Belmont 16 Foot Sailing Club Limited Employees Enterprise Agreement 2024 (the Agreement). The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.

1. The Agreement is expressed to apply to employees engaged to perform duties in bar, gaming, front desk, functions, food service, catering, promotions, cleaning, maintenance, grounds, cellar, purchasing assistant, Club Supervisors, Gaming Analyst, Sailing Instructor and other related operations. The Agreement is to apply to 137 employees. Of those 22 Employees are engaged part time and 76 are casual employees. 62 employees voted on the Agreement and 57 voted to approve.

BOOT concerns

1. Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied. Here the relevant award is the Registered and Licensed Clubs Award 2020 which is excluded at Clause 6.1 (the Award). In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application. A number of BOOT concerns were raised about the application.

1. The first matter raised was in respect of overtime for part time employees. Clause 18.6 of the Agreement provides that part time employees may be required to perform shifts additional to those rostered and such shifts shall be paid at ordinary rates of pay. The Award states that part time employees receive overtime when working in excess of their rostered hours (cl 10.13(b)(ii)) and permits rosters to be changed by mutual consent (cl 16.2(a)).

1. The applicant referred to the historical context underpinning the flexibility provided by the Agreement clause, including a state government enquiry promoting a shift away from casualisation in the late 1990s. The applicant noted that the Award was varied in or around 2018 to include the current provision and submitted that retaining the earlier flexibility in the part time clause is one of the “fundamental reasons” it undertook the enterprise agreement process. The applicant also submitted that the part time clause is understood, supported and favoured by its employees and that the provision provides for an alternative, optional means of working additional hours.

1. The reference to the 2018 Award variation is a reference to the variation to the Award arising from the decision of the Full Bench in the 4 yearly Review of Modern Awards – Casual employment and Part time employment [2017] FWCFB 3541. In that decision the Full Bench stated at [525] that greater flexibility in the rostering of hours was necessary for the part time provisions in the Award to be relevant. It also made it clear that it did not intend to depart from the general principle stated by the AIRC Full Bench in the Award Modernisation Decision of 4 September 2009[1] that as a matter of concept and principle, part time employment must carry with it a ‘degree of regularity and certainty of employment’ and that it ‘should be akin to full time employment in all respects except that the average weekly ordinary hours are fewer than 38’.

1. The Full Bench described the historical position in the NSW club industry at [526] as follows:

[526] The position which  pertained  in  the  club  industry  in  New  South  Wales  after  1999 under  the Clubs  Employees  (State)  Award and  the  succeeding  NAPSA  demonstrates  that  a more  flexible  part time  provision  can  lead  to  a  very  large  increase  in  the  proportion  of  part time  employees  (and  a  corresponding  drop  in  the  proportion  of  casuals).  That was a regime which was supported,  and  its  introduction  facilitated,  by  the  union.  A number of employee witnesses before  us  gave  evidence  that  the  part time  work  arrangements  which  they  had entered  into  under  that  regime  were  highly  suitable  to  them,  in  that  they  had  job  security,  a guaranteed level of income, access to leave entitlements, and better access to finance, and that they  preferred  part time  employment  to  casual  employment.  That confirms our  view  that greater flexibility in part time employment provisions in the Hospitality Award and the Clubs Award would  be  in  the  interests  of  both  employees  and  employers.  It would also make the operation of casual conversion provisions more effective.

1. The Full Bench also noted a concern that employers could abuse the flexibility in part time clause by setting the guaranteed hours  lower  than  the  regular hours worked, and the clauses needed to be amended to ensure that guaranteed hours reflected or came close to actual hours[2]. The Award clause regulating part–time was varied taking these factors into account and creating a balance between flexibility and the need to ensure that the flexibility offered was not abused. One of those protections was the requirement that shifts worked in addition to rostered shifts be paid at overtime rates unless agreed otherwise.

1. The BOOT is to be made on the basis of a global assessment. The concern about clause 18.6 arises because I am not satisfied the rates of pay are high enough to compensate for the loss of entitlement to overtime on additional shifts worked. A significant increase in base rates in the Agreement may offset the increased flexibility to allow the applicant to require part time employees to work additional shifts without the payment of overtime but I do not consider that to be the case here. The comparison between the Agreement base rates and Award base rates is as follows:

Modern Award Classification	Agreement Classification	Modern Award Rate	Agreement Rate	Percentage Difference
Level 1	Level 1	$23.23	$23.72	2.12%
Level 2	Level 2	$24.08	$24.93	3.51%
Level 3	Level 3	$24.87	$26.09	4.91%
Level 4	Level 4	$26.18	$27.18	3.82%
Level 5	Level 5	$27.83	$28.88	3.76%
Level 6	Level 6	$28.57	$29.79	4.28%
Level 7	Level 7	$29.29	$30.70	4.81%

1. Given the negligible increase in rates provided for in the Agreement I am not satisfied that the removal of the overtime entitlement for additional shifts are compensated for by the increase in the base rate.

1. In applying the BOOT the Commission may have regard to reasonable foreseeable patterns of work. The applicant did not provide any information that would allow me to make an assessment based on the patterns of work and the prevalence of additional shifts being worked. The submission that the flexibility in the part time clause, which includes requiring employees to work additional shifts at ordinary rates, was one of the “fundamental reasons” in proposing the agreement suggests that it is likely the provision will be used.

1. Taking these various matters into account I am not satisfied that part time employees would be better off overall if the Agreement applied than if the Award applied. Undertakings were sort in relation to this matter but none was offered.

1. As I am not satisfied that part time employees would be better off overall if the Agreement applied to them than if the Award applied, I am not satisfied that the requirement in s. 186(2)(d) of the Act is met and I cannot approve the Agreement. The application will therefore be dismissed.   

1. I note that the other concerns raised about the Agreement were addressed by the applicant’s submissions and in some cases undertakings were provided. I was satisfied by the submissions and undertakings in relation to those matters.

1. For the foregoing reasons the application to approve the Agreement is dismissed.

DEPUTY PRESIDENT

ANEXURE A

[1] [2009] AIRCFB 826 at [144].

[2] Id at [533]

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