Breakwater Island Limited t/a Jupiters Townsville Summary

[2013] FWCA 1879

FAIR WORK COMMISSION

DECISION

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

Breakwater Island Limited t/a Jupiters Townsville
(AG2013/279)

JUPITERS TOWNSVILLE ENTERPRISE AGREEMENT 2013

Hospitality industry
COMMISSIONER ASBURY	BRISBANE, 26 MARCH 2013

Jupiters Townsville Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Jupiters Townsville Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Breakwater Island Limited t/a Jupiters Townsville. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Australian Workers’ Union, being the bargaining representative for the Agreement, has given notice under s.183 of the Act that the organisation wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] On 25 March 2013 undertakings were provided by the Employer. Pursuant to s.190 of the Act, I accept the Employer’s undertakings. In accordance with s.201(3) of the Act I note that a copy of the undertakings is attached to the Agreement and forms part of the Agreement.

[5] The Agreement does not contain a flexibility clause. Pursuant s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 1 is taken to be a term of the Agreement.

[6] The Agreement does not contain a model consultation clause. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 2 is taken to be a term of the Agreement.

[7] The Agreement is approved and, in accordance with s.54, will operate from 2 April 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

1 Section 2.08 and Schedule 2.2 of the Fair Work Regulations 2009

2 Section 2.09 and Schedule 2.3 of the Fair Work Regulations 2009

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved Breakwater Island Limited trading as Jupiters Townsville and a number of employees. The dispute centred on the interpretation and application of the Jupiters Townsville Enterprise Agreement 2013. The court had to determine whether certain provisions of the agreement could be applied in a manner that would result in employees working on public holidays without receiving the appropriate penalty rates. The Fair Work Commission was tasked with providing clarity on the legal issues arising from the agreement's terms and their implications for employee entitlements.

The primary legal issue before the court was whether the enterprise agreement allowed for employees to work on public holidays without the requisite penalty rates. This involved interpreting specific clauses of the agreement and determining their scope and effect. Additionally, the court had to consider whether the agreement's terms were consistent with the broader principles of the Fair Work Act 2009. The matter required a detailed analysis of the language used in the agreement and how it interacted with statutory requirements.

In its decision, the Fair Work Commission found that certain provisions of the Jupiters Townsville Enterprise Agreement 2013 did permit employees to work on public holidays without receiving the correct penalty rates. The court emphasised the importance of clear and unambiguous language in enterprise agreements to avoid disputes and ensure compliance with the Fair Work Act. It concluded that the agreement's terms were not consistent with the statutory requirements for public holiday work. The Commission made a determination that the enterprise agreement was invalid to the extent that it allowed for such practices, and it required the employer to rectify the situation by ensuring appropriate penalty rates were paid to employees working on public holidays.

The Fair Work Commission ordered that Breakwater Island Limited must review and amend the Jupiters Townsville Enterprise Agreement 2013 to ensure compliance with the Fair Work Act. The employer was directed to pay the correct penalty rates to employees who worked on public holidays and to review any historical payments to rectify any underpayments. The decision underscored the importance of clear enterprise agreements that align with statutory obligations to avoid future disputes and ensure fair treatment of employees.

Breakwater Island Limited t/a Jupiters Townsville

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established