Commodore Regent Hotel Pty Ltd

[2014] FWCA 7337

FAIR WORK COMMISSION

DECISION

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

Commodore Regent Hotel Pty Ltd
(AG2014/7747)

COMMODORE REGENT HOTEL ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 17 OCTOBER 2014

Application for approval of the Commodore Regent Hotel Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Commodore Regent Hotel Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Commodore Regent Hotel Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 15 employees who are employed at the applicant’s hotel in Launceston, Tasmania.

[2] The employees were last notified of their representational rights on 26 August 2014, and voting for the Agreement’s approval took place on 18 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 11 of the 14 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 3 October 2014. While I note that this is outside the statutory time limit contemplated in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time for filing to 3 October 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Larissey identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Larisseysaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Modern Award, in that some allowances are not provided for in that they are not relevant to the applicant’s business or that the applicant provides the relevant service. However, the Agreement also provides for payment for training and an ‘Hours Bank’ for time off in lieu of overtime. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. The Agreement provides at clauses 16 and 5 respectively that the model flexibility and consultation terms apply and these are annexed to the Agreement. A disputes resolution procedure at clause 6 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 15 October 2014, Mr D Houlihan of First IR Consultancy Pty Ltdappeared with Mr J Husband and Mr P Sydes for the applicant. Mr Houlihan offered an undertaking which amended the entitlement of a seven day shift worker to five weeks of annual leave and provided for afternoon and night shift penalty rates. Mr Houlihan outlined the main features of the Agreement and submitted that with the offered undertakings, all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. I am satisfied that the Agreement as amended passes the BOOT. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190, 191 and 193 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Commodore Regent Hotel Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 22 October 2014 and have a nominal expiry date of 21 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission was an application for the approval of the Commodore Regent Hotel Enterprise Agreement 2014. The application was brought by the Hotel & Restaurant Industry Employees' Union, the employer, Commodore Regent Hotel Pty Ltd, and a number of employees. The dispute centred on whether the agreement met the requirements for approval under the Fair Work Act 2009. The legal issues before the court were whether the agreement complied with the procedural and substantive requirements for approval under the Act. The procedural requirements included whether the agreement had been negotiated in good faith and whether appropriate steps had been taken to ensure that employees had an opportunity to be involved in the negotiation process. The substantive requirements included whether the agreement provided for fair and reasonable terms and conditions of employment, including wages and other entitlements.

The court found that the agreement had been negotiated in good faith and that appropriate steps had been taken to ensure employee involvement in the negotiation process. The court also found that the agreement provided for fair and reasonable terms and conditions of employment, including wages and other entitlements. The court noted that the agreement provided for a number of improvements to employee entitlements, including increased wages and better conditions for shift work. The court was satisfied that the agreement met the requirements for approval under the Act. The court approved the agreement and made orders accordingly.

The court ordered that the Commodore Regent Hotel Enterprise Agreement 2014 be approved as a registered agreement under the Fair Work Act 2009. The court also ordered that the agreement be registered with the Fair Work Commission and that it would be in effect from the date of the order. The court noted that the agreement would provide for improved terms and conditions of employment for employees at the Commodore Regent Hotel and that it was in the best interests of both the employer and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established