Club Marconi of Bossley Park Social Recreation and Sporting Centre Limited t/as Club Marconi

[2014] FWCA 3171

[2014] FWCA 3171

FAIR WORK COMMISSION

DECISION

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

Club Marconi of Bossley Park Social Recreation and Sporting Centre Limited t/as Club Marconi
(AG2014/5952)

CLUB MARCONI OF BOSSLEY PARK SOCIAL RECREATION & SPORTING CENTRE LIMITED- EMPLOYEE ENTERPRISE AGREEMENT 2014- 2017

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 14 MAY 2014

Application for approval of the Club Marconi of Bossley Park Social Recreation & Sporting Centre Limited-Employee Enterprise Agreement 2014-2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Club Marconi of Bossley Park Social Recreation and Sporting Centre Limited t/as Club Marconi (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Club Marconi of Bossley Park Social Recreation & Sporting Centre Limited- Employee Enterprise Agreement 2014- 2017 (the ‘Agreement’). The Agreement was negotiated with United Voice, Liquor and Hospitality Division (the ‘Union’) and is to cover 180 employees who are employed at the applicant’s Club, other than Club Managers and Child Care Professionals, in Bossley Park, 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 10 March 2014, and voting for the Agreement’s approval took place between 22 - 24 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 24 of the 26 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms K Casal, HR Coordinator, 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’). Ms Casalsaid that the Agreement does provide for some terms and conditions that are less beneficial than the reference instruments, including temporary less generous redundancy entitlements and the removal of an entitlement to a paid 20 minute break if an employee works more than five hours after receiving an unpaid meal break. However, the Agreement provides for a number of entitlements that are in excess of, or more beneficial than those under the reference instruments, including higher rates of pay, a paid ten minute tea break for all employees who work a shift six hours or longer and the provision of shoe and laundry allowances. Rates of pay are to be annually increased by 3% or in accordance with the Commission’s Minimum Wage Review Decision, whichever is the higher each year on 1 July during the Agreement’s nominal term. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 52 and 48 respectively, and a disputes resolution procedure at clause 51 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 14 May 2014, Mr P Willink and Ms E Nicolle of Clubs NSW,appeared with Ms K Casal for the applicant and Mr C Acev for the Union. 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. Mr Willink 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.

[5] However, Mr Acev said the Union did not support the approval of the Agreement as it does not provide for penalty rates for late, early or broken shifts and the applicant had failed to identify these omissions in its Form F17. Mr Willink explained that this was an oversight. He submitted, nevertheless, that the rates of pay were between 4 and 7% higher than under the reference instruments and, in any event, the employees would be better off overall under the Agreement. Mr Acev added that whether the Agreement met the BOOT was a matter for the Commission and the Union put no submission on the issue.

[6] 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 Club Marconi of Bossley Park Social Recreation & Sporting Centre Limited- Employee Enterprise Agreement 2014- 2017.Pursuant to s 54 of the Act, the Agreement shall operate from 21 May 2014 and have a nominal expiry date of 21 May 2017.

DEPUTY PRESIDENT

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