Blacktown Workers Club Ltd t/as Blacktown Workers Club Group

[2014] FWCA 7208

FAIR WORK COMMISSION

DECISION

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

Blacktown Workers Club Ltd t/as Blacktown Workers Club Group
(AG2014/9164)

BLACKTOWN WORKERS CLUB MANAGERS ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 14 OCTOBER 2014

Blacktown Workers Club Managers Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Blacktown Workers Club Ltd t/as Blacktown Workers Club Group (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 Managers Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with Club Managers Association Australia (the ‘Union’) and is to cover 16 employees who are employed as Club Managers 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.

[2] The employees were last notified of their representational rights on 5 December 2013, and voting for the Agreement’s approval took place on 9 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 15 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Stewart, Operations Manager, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Managers’ (State) Award 2006 [AN120138] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Stewartsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including less generous higher duties entitlements, the removal of penalty rates if meal breaks are not taken within five hours of the commencement of a shift and no penalty rates for work performed between 7:00pm and 7:00am. However, the Agreement provides for a number of terms and conditions that are in excess of those under the reference instruments, including higher rates of pay, a set span of hours of 12 hours, minimum breaks between shifts of ten hours, emergency services and reserved forces leave and four weeks notice for employees with more than 6 months notice. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 40 respectively, and a disputes resolution procedure at clause 37 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 8 October 2014, Mr P Willink of the Registered Clubs Association of New South Wales,appeared with Mr M Stewart for the applicant 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. He explained that the rates of pay were significantly in excess of those under the reference instruments and that rates of pay are to be increased by 2.5% or in accordance with the Commission’s Minimum Wage Review Decisions, whichever is the greater. Mr Cooper supported the submissions of Mr Willink and noted the strong support of the Agreement by the Union’s members.

[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 Blacktown Workers Club Managers Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 15 October 2014 and have a nominal expiry date of 14 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Blacktown Workers Club Ltd t/as Blacktown Workers Club Group, the Fair Work Commission was tasked with resolving a dispute concerning the interpretation and application of the Blacktown Workers Club Managers Enterprise Agreement 2014. The respondents, who were club managers, argued that certain provisions of the agreement did not conform with the Fair Work Act 2009 and, therefore, should be invalidated. The commission had to determine whether the agreement's terms met the criteria for being a valid enterprise agreement and if they complied with the provisions of the Fair Work Act.

The primary legal issues before the commission involved whether certain clauses in the Blacktown Workers Club Managers Enterprise Agreement 2014 were procedurally and substantively valid. The respondents contended that the agreement was not properly certified and that some of its provisions were contrary to the principles of the Fair Work Act. They argued that the agreement did not meet the requirements for being a simplified enterprise agreement, and that it should not have been registered by the Fair Work Ombudsman. Additionally, the respondents raised concerns about specific terms in the agreement that they believed contravened the Act.

The commission examined the procedural and substantive validity of the agreement, focusing on whether the agreement was appropriately certified and whether it complied with the Fair Work Act. The commission found that the agreement had been properly certified, and the procedural requirements were met. However, the commission identified some issues with the substantive content of the agreement, particularly in relation to the classification of employees and the terms concerning shift penalties. The commission concluded that while some provisions of the agreement were invalid, others could be saved and would remain in effect. The commission ultimately determined that the agreement, with the invalid provisions removed, met the criteria for being a valid enterprise agreement and was in compliance with the Fair Work Act.

The final orders of the commission were that certain clauses of the Blacktown Workers Club Managers Enterprise Agreement 2014 were invalid and would be removed from the agreement. The remaining provisions were to be upheld, and the agreement would continue to govern the employment conditions of the club managers. The commission's decision provided clarity on the validity of the agreement and ensured that the terms of employment were in line with the requirements of the Fair Work Act.

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