Casinos Austria International (Cairns) Pty Ltd T/A The Reef Hotel Casino Cairns

[2024] FWCA 1591

[2024] FWCA 1591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Casinos Austria International (Cairns) Pty Ltd T/A The Reef Hotel Casino Cairns

(AG2024/1002)

THE REEF HOTEL CASINO CAIRNS COMPLEX AND STAFF– ENTERPRISE AGREEMENT 2024-2027

Hospitality industry
COMMISSIONER CONNOLLY	MELBOURNE, 1 MAY 2024

Application for approval of the Reef Hotel Casino Cairns Complex and Staff– Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as The Reef Hotel Casino Cairns Complex and Staff– Enterprise Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Casinos Austria International (Cairns) Pty Ltd T/A The Reef Hotel Casino Cairns. The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 10 April 2024.

1. The notification time for the Agreement under s.173(2) was 10 November 2023 and the Agreement was made on 18 March 2024. Accordingly, both the genuine agreement and the better off over all test (BOOT) requirements are those applying on and from 6 June 2023.[1]

1. On 15 April 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. The following clauses appear inconsistent with the National Employment Standards (NES):

·  Clause 3.5.5 provides that on termination the employer may deduct from the employee’s final payment, any amount it is authorised by the employee to deduct. This includes any overpayment of remuneration or the non-return of employer property.

·  Clause 2.2.6 provides that if the employee fails to provide the required notice, the Employer may deduct from any monies owing an amount equivalent to the notice not provided.

·  Clause 6.6.2 provides that on termination the employee must return all employer property prior to receiving any final payments. The entitlement to payments arising under the NES on termination is not subject to such a limitation.

·  Employees may be expected to work on public holidays whereas the Act says that employees can be requested to work.

·  Clause 5.8.5 states by agreement between employer and majority of employees, another day may be substituted. However, s.115(3) provides for agreement with a singular employee. 2.2 Division 2 of the Act.

·  Clause 2.9 sets out circumstances where an employee is deemed to have abandoned their employment but does not specify that an employee is entitled to payment of notice of termination in accordance with ss. 117–123 of the Act (see Bienias v Iplex Pipelines Australia Pty Limited [2017] FWCFB 38 at [58]).

1. Clause 1.3.5 of the Agreement acts as an effective NES precedence clause, in that it states that the Agreement is read and interpreted in conjunction with the NES. Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190 and 193 of the Act as are relevant to this application for approval have been met.

1. Considering the proposed Agreement on this basis, having regard to s.193A I am satisfied that the BOOT is met. I note that should the employment practices with regard to classifications and work pattern change, an application under s.227A is available for a reconsideration of the BOOT.

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

1. The Agreement is approved and, in accordance with s.51 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date of the Agreement is 1 May 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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