Cooma Ex-Services Club Ltd

[2014] FWCA 1280

[2014] FWCA 1280

FAIR WORK COMMISSION

DECISION

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

Cooma Ex-Services Club Ltd
(AG2014/247)

COOMA EX-SERVICES CLUB LIMITED ENTERPRISE AGREEMENT 2013

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 21 FEBRUARY 2014

Application for approval of the Cooma Ex-Services Club Limited Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Cooma Ex-Services Club Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cooma Ex-Services Club Limited Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with Liquor and Hospitality Division, United Voice (the ‘Union’). The Agreement is to cover 25 employees who are employed at the applicant’s Club in Cooma, New South Wales, excluding 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 8 May 2013, and voting for the Agreement’s approval took place on 24 January 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, all 6 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 February 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr K Morrell, Secretary Manager, 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’). Mr Morrellsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for night shifts, broken shifts and early shifts. However, the Agreement also provides for terms and conditions more beneficial than or in excess of those under the reference instruments, including higher rates of pay, enhanced redundancy entitlements, longer minimum engagements for casual employees and an extra public holiday on the third Monday in February. It was also said that another benefit included the ability to cash out annual leave in certain circumstances. Rates of pay are to be increased by 2.6% on 1 July 2014, 3% on 1 July 2015 and 3% on 1 July 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 45 respectively, and a disputes resolution procedure at clause 41 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 20 February 2014, Mr K Morrell appeared for the applicant and Mr M Dusevic for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and 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 Morrell 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 submitted that the voter turnout for approval of the Agreement may have been low as the Agreement is fairly similar to the previous enterprise agreement covering the applicant and noted that the employees who voted had unanimously agreed to approve the Agreement. Mr Dusevic supported the submissions of Mr Morrell and added that the Union viewed the Agreement as beneficial for its members.

[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 Cooma Ex-Services Club Limited Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 27 February 2014 and have a nominal expiry date of 27 February 2017.

DEPUTY PRESIDENT

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