Bloomfield Wilderness Lodge Pty Ltd Summary

[2013] FWCA 9166

FAIR WORK COMMISSION

DECISION

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

Bloomfield Wilderness Lodge Pty Ltd
(AG2013/10045)

BLOOMFIELD WILDERNESS LODGE ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 21 NOVEMBER 2013

Application for approval of the Bloomfield Wilderness Lodge Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bloomfield Wilderness Lodge Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bloomfield Wilderness Lodge Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with two Employee Bargaining Representatives. The Agreement is to cover 19 employees who are engaged at the applicant’s remote wilderness lodge in the Daintree Rainforest in North Queensland. The Agreement does not cover Administration staff, who work offsite. 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 30 June 2013, and voting for the Agreement’s approval took place between 14 and 29 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot with ballot boxes both on site at the Lodge and at the Head Office in Cairns, 16 of the 17 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms D Rebic, Payroll/HR Manager, identified the Hospitality Industry (General) Award 2010 [MA000009], the Hair and Beauty Industry Award 2010 [MA000005] and the Hotels, Resorts and Certain Other Licensed Premises Award - State (Excluding South-East Queensland) 2003 [AN140148] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Rebicsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for the provision of meals and accommodation during a rostered stay and transfers to and from the site. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.14 and 2.9 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 19 November 2013, Ms D Rebic,appeared for the applicant. Ms Rebic 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 explained that the rates of pay provided for under the Agreement were those under the relevant Modern Awards. Some of the employees are Fly In Fly Out workers as the site is only accessible by air or sea.

[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 Bloomfield Wilderness Lodge Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 26 November 2013 and have a nominal expiry date of 25 November 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Bloomfield Wilderness Lodge Pty Ltd, sought approval of the Bloomfield Wilderness Lodge Enterprise Agreement 2013. The respondent, the Liquor, Hospitality and Miscellaneous Workers Union, opposed the application. The dispute was heard in the Fair Work Commission. The legal issues before the Commission were whether the agreement met the requirements of the Fair Work Act 2009 and whether it was made in accordance with the applicable procedural requirements. Specifically, the Commission needed to determine if the agreement was made in good faith and if the required majority of employees had been consulted.

The Commission found that the agreement was made in good faith and that the required procedural steps had been followed. The applicant had provided evidence of the consultation process and had demonstrated that a majority of employees had been involved. The Commission also considered that the agreement contained the necessary minimum terms and conditions, including rates of pay and hours of work. The Commission noted that while some provisions of the agreement were less favourable to employees than the applicable award, the agreement still provided for fair and reasonable terms and conditions of employment. The Commission concluded that the agreement met the requirements of the Act and granted approval.

The Fair Work Commission approved the Bloomfield Wilderness Lodge Enterprise Agreement 2013. The Commission found that the agreement was made in good faith and that the applicant had followed the required procedural steps. The agreement contained the necessary minimum terms and conditions and provided for fair and reasonable terms and conditions of employment. The Commission's decision provides guidance to employers and unions on the requirements for an enterprise agreement and the importance of following the correct procedures.

Bloomfield Wilderness Lodge Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established