Blacktown Workers Club Limited

[2013] FWCA 3204

[2013] FWCA 3204

FAIR WORK COMMISSION

DECISION

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

Blacktown Workers Club Limited
(AG2013/6405)

BLACKTOWN WORKERS CLUB GREENKEEPERS ENTERPRISE AGREEMENT

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 28 MAY 2013

Application for approval of the Blacktown Workers Club Greenkeepers Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Blacktown Workers 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 Blacktown Workers Club Greenkeepers Enterprise Agreement (the ‘Agreement’). The Agreement is to cover four employees who are engaged as Greenkeepers at the applicant’s Club in Blacktown, 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. I note that the preponderance of the Club’s employees are covered by the Blacktown Workers Club Enterprise Agreement [AE899520], approved by SDP Acton on 24 January 2013.

[2] The employees were last notified of their representational rights on 11 February 2013, and voting for the Agreement’s approval took place on 6 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote that was notified to the relevant employees by way of a memo on 26 April 2013, all three of the employees who voted, agreed to approve the Agreement. I understand that the fourth employee was overseas at the time the vote was conducted. The application for approval of the Agreement was lodged on 10 May 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Fletcher, Human Resource Manager, identified the Registered and Licensed Clubs Award 2010 [MA000058] 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’). Ms Fletchersaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the removal of a vehicle allowance and less generous overtime penalty rates on Saturdays. However, the Agreement provides for a significant number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, the ability to ‘bank’ overtime to add to annual leave entitlements and an additional public holiday on an employee’s birthday. The Agreement provides for annual increases in pay effective from 1 February of 2.5% for the duration of the Agreement. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 38 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 22 May 2013, Ms E Nicolle of the Registered Clubs Association of NSW t/as ClubsNSW,appeared with Ms S Fletcher of the applicant. Ms Nicolle 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. She said that the relevant employees have previously been covered by an enterprise agreement negotiated in 2010. It was the intention of the Club in the next round of negotiations, to cover all employees under a single enterprise agreement. Ms Nicolle drew the Commission’s attention to the provision under the Agreement for three days paid Safe Family Support Leave for the purpose of attending to domestic violence issues. She also explained that while the provision under clause 7 for a ‘Voluntary Exemption Agreement’ was similar to the mandatory flexibility clause under clause 6, it derived from a similar provision under the Bowling and Golf Clubs Employees (State) Award and that it provides for an exemption rate of 33% above the ordinary rate of pay for a Level 4 or higher classification, where applicable.

[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 Blacktown Workers Club Greenkeepers Enterprise Agreement. Pursuant to s 54 of the Act, the Agreement shall operate from 29 May 2013 and have a nominal expiry date of 29 May 2016.

DEPUTY PRESIDENT

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