Dapto Leagues Club Ltd t/a Dapto Leagues Club

[2017] FWCA 827

[2017] FWCA 827 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Dapto Leagues Club Ltd t/a Dapto Leagues Club
(AG2017/107)

DAPTO LEAGUES CLUB MANAGERS ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 8 FEBRUARY 2017

Application for approval of the Dapto Leagues Club Managers Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Dapto Leagues 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 Dapto Leagues Club Managers Enterprise Agreement (the ‘Agreement’). The Agreement was negotiated with the Club Managers’ Association of Australia (the ‘Union’) and is to cover managers who are engaged in the applicant’s licensed club in Dapto, NSW (currently 11 employees). 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 30 November 2016, and voting for the Agreement’s approval took place on 5 January 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 10 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 16 January 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Tozer, who was previously the applicant’s President, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Managers (State) Award 2006 [AN120138] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Tozer said the Agreement provides for a number of more beneficial terms and conditions, including significantly higher wage rates of between 10-41%, the ability to cash out annual leave and more beneficial notice periods. Wages are to be increased by 2.5% or the Commission’s Minimum Wage Decisions on 1 July 2017, 2018 and 2019. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 12 and 39 respectively, and a disputes resolution procedure at clause 36 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 1 February 2017, Ms L Pike, of ClubsNSW,appeared for the applicant and Mr P Cooper for the Union. Ms Pike 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. I drew Ms Pike’s attention to the consultation clause at 39, which does not trigger in circumstances where the applicant intends to change an employee’s regular hours of work or roster. I also drew to Ms Pike’s attention that, while the Agreement specified that employee superannuation payments would be paid to a default superannuation fund, (unless otherwise directed by the employee), the Agreement did not identify the default fund. Ms Pike offered to provide an undertaking to rectify these matters. This was received in Chambers on 3 February 2017. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. 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.

[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 ss180, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Dapto Leagues Club Managers Enterprise Agreement. Pursuant to s 54 of the Act, the Agreement shall operate from 8 February 2017 and have a nominal expiry date of 8 February 2020.

DEPUTY PRESIDENT

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