Canley Heights RSL & Sporting Club Limited

[2015] FWCA 5950

[2015] FWCA 5950

FAIR WORK COMMISSION

DECISION

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

Canley Heights RSL & Sporting Club Limited
(AG2015/4309)

CHRSL&SC ENTERPRISE AGREEMENT 2015

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 31 AUGUST 2015

Application for approval of the CHRSL&SC Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Canley Heights RSL & Sporting Club Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the CHRSL&SC Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 87 employees, other than Club Managers, who are employed at the applicant’s Club in Wakeley, 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 17 June 2015 and voting for the Agreement’s approval took place on 30 and 31 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 45 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 August 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Baxter, Chief Executive Officer, identified the Registered and Licensed Clubs Award 2010 [MA000058], the Club Employees (State) Award [AN120136] and the Bowling and Golf Clubs Employees (State) Award [AN120079] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Baxtersaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including a modified higher duties allowance, the removal of late and early work penalties and the lack of provision of an allowance for broken periods of work. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, an additional ‘public holiday’ on an employee’s birthday and enhanced redundancy entitlements. The Agreement provides for the mandatory flexibility and consultation terms at Schedules A and B respectively, and a disputes resolution procedure at Schedule C provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 27 August 2015, Mr P Norrie of Adaptix Pty Ltd appeared with Mr Baxter for the applicant and Mr C Acev for the Union. Mr Norrie 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. However, the Declaration set out that the Union did not support the approval of the Agreement due to the differential annual pay increases due to employees dependent on their classification. Base rates of pay for Level 1 and 2 employees are to be increased on 1 July 2016 and 1 July 2017 in accordance with the Commission’s Annual Minimum Wage Review Decision, while the base rates of pay of all other employees are to be increased by 3% on those same dates. Mr Norrie submitted that this was to address perceived anomalies between classifications that had arisen during the transitional period of the Award Modernisation process. Mr Baxter said that approximately 15% of the applicant’s workforce is classified under Levels 1 and 2. Mr Acev acknowledged the anomalies identified by Mr Norrie and did not dispute that the Agreement satisfied the BOOT, in any event. Despite the Union’s objection, I am satisfied that the Agreement passes 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 CHRSL&SC Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 3 September 2015 and have a nominal expiry date of 3 September 2018.

DEPUTY PRESIDENT

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