Cabra-Vale Ex-Active Servicemen’s Club Limited t/as Cabra-Vale Diggers and Cabra-Vale Diggers at Campbelltown RSL

[2015] FWCA 4163

[2015] FWCA 4163

FAIR WORK COMMISSION

DECISION

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

Cabra-Vale Ex-Active Servicemen’s Club Limited t/as Cabra-Vale Diggers and Cabra-Vale Diggers at Campbelltown RSL
(AG2015/1315)

CABRA-VALE EX-ACTIVE SERVICEMEN'S CLUB/S LIMITED AND CABRA-VALE DIGGERS AT CAMPBELLTOWN RSL EMPLOYEE ENTERPRISE AGREMENT 2015 - 2018

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 22 JUNE 2015

Application for approval of the Cabra-Vale Ex-Active Servicemen's Club/s Limited and Cabra-Vale Diggers at Campbelltown RSL Employee Enterprise Agreement 2015 - 2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Cabra-Vale Ex-Active Servicemen’s Club Limited t/as Cabra-Vale Diggers and Cabra-Vale Diggers at Campbelltown RSL (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cabra-Vale Ex-Active Servicemen's Club/s Limited and Cabra-Vale Diggers at Campbelltown RSL Employee Enterprise Agreement 2015 - 2018 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and thirteen nominated Employee Bargaining Representatives. The Agreement is to cover 261 employees, other than Management and Green-keepers, who are employed at the applicant’s Clubs in Cabra-Vale and Campbelltown, 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 4 June 2014 and voting for the Agreement’s approval took place between 22 and 30 May 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 118 of the 200 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr B Belevski, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Belevskisaid that the Agreement does provide for one term less beneficial than those under the reference instrument, in that the Agreement does not provide for a meal allowance of $12.05 in circumstances of unnotified overtime (though employees are entitled to a meal discount of $7 for each shift of five hours or more). However, the Agreement provides for a range of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, more generous allowances and longer minimum engagements for full time and casual employees. The Agreement provides for the mandatory flexibility and consultation terms at clauses 29 and 56 respectively, and a disputes resolution procedure at clause 53 erroneously refers to Fair Work Australia, which I take as providing for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 18 June 2015, Mr K Gower,appeared for the applicant and Mr C Acev for the Union. Ms Gower 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. 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. However, the Union also put that the applicant had failed to identify the removal of rosters from the consultation clause (cl 56) as a less beneficial clause in the Agreement. Mr Acev submitted that this was a less beneficial term for the purposes of the Better Off Overall Test, though he did not say that the Agreement did not meet the BOOT. On balance, I am satisfied that the Agreement meets the BOOT.

[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 Cabra-Vale Ex-Active Servicemen’s Club/s Limited and Cabra-Vale Diggers at Campbelltown RSL Employee Enterprise Agreement 201 - 2018.Pursuant to s 54 of the Act, the Agreement shall operate from 25 June 2015 and have a nominal expiry date of 25 September 2018.

DEPUTY PRESIDENT

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