Club Forster

[2015] FWCA 4068

[2015] FWCA 4068

FAIR WORK COMMISSION

DECISION

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

Club Forster
(AG2015/1297)

CLUB FORSTER AND SPORTIES TUNCURRY EMPLOYEE ENTERPRISE AGREEMENT 2015-2019

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 18 JUNE 2015

Application for approval of the Club Forster and Sporties Tuncurry Employees Enterprise Agreement 2015-2019.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Club Forster (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Club Forster and Sporties Tuncurry Employee Enterprise Agreement 2015-2019 (the ‘Agreement’). The Agreement is to cover 141 Forster Tuncurry Memorial Services Club employees, other than Club Managers. 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 16 April 2015 and voting for the Agreement’s approval took place between 4 and 18 May 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 23 of the 35 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Clarke, General Manager, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Clubs Employees (State) Award 2006 [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Clarkesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of split shift allowances, a lack of late and early work penalties and provision for annual leave loading to be paid only where an employee takes a period of one week or more of annual leave at a time. However, the Agreement provides for a range of terms and conditions that are in excess of, or more beneficial than those under the reference instruments, including higher rates of pay, paid ten minute tea breaks for every shift of six hours or more, enhanced overtime entitlements for casual employees, more generous severance entitlements and a minimum engagement on public holidays of six hours for full time employees and three hours for casual employees. I am satisfied that the Agreement passes the BOOT. It was also said that the ability to cash out personal and annual leave constituted another benefit for the employees. The Agreement provides for the mandatory flexibility and consultation terms at clauses 19 and 42 respectively, and a disputes resolution procedure at clause 39 provides for independent mediation and conciliation and the issuing of binding recommendations by the Commission.

[4] At a hearing of the application on 16 June 2015, Mr M Ushakoff of ClubsNSW,appeared with Mr P Clarke for the applicant. Mr Ushakoff comprehensively 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. He explained that the rates of pay are 3.6-8.7% higher than those under the reference instruments and are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[5] Having heard the applicant’s 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 Club Forster and Sporties Tuncurry Employee Enterprise Agreement 2015-2019.Pursuant to s 54 of the Act, the Agreement shall operate from 23 June 2015 and have a nominal expiry date of 22 June 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE414361  PR568426>