Broken Hill Sturt Club Ltd

[2014] FWCA 4692

[2014] FWCA 4692

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

Broken Hill Sturt Club Ltd
(AG2014/6732)

BROKEN HILL STURT CLUB LIMITED EMPLOYEE COLLECTIVE AGREEMENT 2011

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

Application for variation of the Broken Hill Sturt Club Limited Employee Collective Agreement 2011.

[1] An application has been made by Broken Hill Sturt Club Ltd (the ‘applicant’), pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’) for the approval of the Fair Work Commission (the ‘Commission’) of a variation to a single enterprise agreement known as the Broken Hill Sturt Club Limited Employee Collective Agreement 2011 (the ‘Agreement’). The application relies on the provisions of ss 207 to 2011 of the Act. The Agreement currently covers 19 employees, excluding Club Managers, working at the applicant’s Club in Broken Hill and the Broken Hill Town Employees’ Union (the ‘Union’).

[2] In the Employer’s Statutory Declaration in support of the application (Form F23A), Mr D Coff, Secretary Manager said that on 22 May 2014, all employees were given the written text of the variation, a letter notifying them of the date, time and place of the secret ballot for approval of the variation to the Agreement and provided with access to the Agreement, the Registered and Licensed Clubs Award 2010 [MA000058] and the Act. In a secret ballot on 24 June 2014, all 13 of the employees who cast a valid vote, agreed to approve the variation.

[3] The effect of the variation sought is to include a Supported Wage System in the Agreement that would provide the applicant with an opportunity to employ persons with a disability. A copy of the draft variation, which adds a Schedule D to the Agreement, is attached to this decision and marked as ‘Annexure A’. The applicant submitted, in its statutory declaration in support of the variation (Form F23A) that this would be more beneficial for prospective employees with disabilities and that the variation results in no less beneficial terms. Ms R Ferry of the Union, indicated in communications with my chambers that she had no objection to the approval of the proposed variation to the Agreement.

[4] Section 211(1) of the Act provides that the Commission must approve a variation made pursuant to s 210 if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[5] Having reviewed the terms of the pre-approval process documentation and the proposed variation, I am satisfied that all of the requirements of the Act, in particular ss 207, 208, 209, 210 and 211 of the Act, in so far as relevant to this application, have been met. In consideration of the variation sought, I have taken particular account of the fact that the proposed variation has received unanimous endorsement from the employees who are employed by the Club and that the Union covered by the Agreement does not object to the variation. In my view, providing the applicant with an opportunity to employ persons with a disability is clearly in the wider public interest. Accordingly, I approve the proposed variation to the Broken Hill Sturt Club Limited Employee Collective Agreement 2011, in terms of Annexure A. The variation shall take effect today 14 July 2014 and remain in force until the Agreement is rescinded or replaced.

DEPUTY PRESIDENT

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