Canberra Southern Cross Club Ltd

[2013] FWCA 1367

[2013] FWCA 1367

FAIR WORK COMMISSION

DECISION

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

Canberra Southern Cross Club Ltd
(AG2013/5096)

CANBERRA SOUTHERN CROSS CLUB ENTERPRISE AGREEMENT 2013 - 2016

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 13 MARCH 2013

Application for approval of the Canberra Southern Cross Club Enterprise Agreement 2013 -2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Canberra Southern Cross Club Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Canberra Southern Cross Club Enterprise Agreement 2013 - 2016 (the ‘Agreement’). The Agreement was negotiated between the applicant and an internal negotiating committee. There were no bargaining representatives appointed from within the body of the employees or otherwise. United Voice (the ‘Union’), while not directly involved in the negotiations for the Agreement, did engage in some email contact with the applicant while the Agreement was being negotiated.

[2] The Agreement is to cover all 430 employees who are engaged at any of the applicant’s Clubs in Canberra, Australian Capital Territory. 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.

[3] The employees were last notified of their representational rights on 12 June 2012, and voting for the Agreement’s approval took place on 5 February 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 69 of the 113 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 February 2013, thereby satisfying s 185(3) of the Act.

[4] In the Employer’s Declaration in support of the application (Form F17) Mr G Mitchell, Chief Executive Officer, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Marine Tourism and Charter Vessels Award 2010 [MA000093] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). The latter Award is relevant to a Club/Boat facility operated by the applicant on Lake Burley Griffin.

[5] Mr Mitchell said that the Agreement did contain some terms and conditions that were less beneficial than the Award, including the removal of allowances found in the Marine Tourism and Charter Vessels Award 2010 that are not relevant to the applicant’s business, a removal of penalty rates on public holidays for employees on an annualised rate of pay and the ability for the applicant to direct an employee to use their annual leave where they have accrued five weeks or more. However, the Agreement also provides for terms and conditions that are in excess of, or more beneficial, than those under the reference instruments, including meal and drink entitlements, a laundry allowance and small increases to both casual rates and annualised rates of pay. The wage differentials range from 0.43% - 1.08% above the Award. The Agreement provides for the mandatory flexibility and consultation terms at clauses 11 and 68 respectively, and a disputes resolution procedure at clauses 66 and 67 provides for conciliation and arbitration by the Commission.

[6] At a hearing of the application on 5 March 2013, Mr J Wilson, Solicitor,appeared for the applicant with Mr M Rennick, Human Resources Manager and Ms C Sawyer, Chief Financial Officer, of the applicant. Mr G Noble appeared for United Voice (the ‘Union’). Mr Wilson 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) 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.

[7] However, the Declaration filed by the Union expressed a number of reservations in relation to the Agreement being approved. These reservations were the subject of extensive oral submissions by the parties. In particular, the Union drew attention to the proposed cl 28.7, which provided that where employees are ‘not directed’ to work hours that attract a penalty rate and in fact do work the hours, they will not be entitled to additional penalty rates for the hours worked. Mr Wilson submitted that the intention of this clause was to prevent employees from failing to clock off for breaks and then later claiming penalty rates. Further, the Union drew attention to the Meal Allowance in cl 41.2, which provided that the allowance would not be paid in circumstances where the employee did not take up the offer of a free meal and other allowances, such as those for working early, working late, working away from the usual place of work and that applicable for higher duties were not payable. Mr Wilson submitted that some of these allowances were not relevant to the applicant’s business, but agreed to provide an undertaking to remedy these concerns. The Union also raised issues with the complex classification structure, but Mr Wilson clarified these issues to the satisfaction of the Union and the Commission.

[8] Finally, the Union noted that the Agreement contained ambiguities in relation to shift workers in that it did not explicitly refer to them. The Union submitted that this could potentially have an adverse effect on the annual leave entitlements afforded to shift workers under the National Employment Standards (NES), especially in light of the Agreement expressing that it did not incorporate, but also did not exclude, the NES. Mr Wilson made an innovative submission that the Agreement could describe shift workers, without explicitly referring to them. However, he agreed to provide an undertaking to clarify the position and annual leave entitlements of shift workers. In light of the undertakings provided by the applicant and the Union’s advice that they agree to them, I am satisfied that the Agreement meets the BOOT. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement.

[9] 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, 188, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Canberra Southern Cross Club Enterprise Agreement 2013 - 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 12 March 2013 and have a nominal expiry date of 31 December 2016.

DEPUTY PRESIDENT

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