Darghaw Pty Limited

[2013] FWCA 4242

[2013] FWCA 4242

FAIR WORK COMMISSION

DECISION

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

Darghaw Pty Limited
(AG2013/1610)

OSCARS HOTELS ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 3 JULY 2013

Application for approval of the Oscars Hotels Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Darghaw Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Oscars Hotels Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 6 employees who are engaged at the applicant’s hotel in Sydney. The employees were last notified of their representational rights on 15 May 2013, and voting for the Agreement’s approval took place on 20 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 5 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 June 2013, thereby satisfying s 185(3) of the Act.

[2] In the Employer’s Declaration in support of the application (Form F17) Mr Nelson Wong, Company Accountant, identified the Hospitality Industry (General) Award 2010 [MA000009], the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479] and the National Training Wage Award 2000 [AP790899] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Wongsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of a number allowances that are not relevant to the applicant’s business. However, the Agreement also provides for higher rates of pay from Monday to Friday. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 6 respectively, and a disputes resolution procedure and 5 provides for conciliation and arbitration by the Commission.

[3] At a hearing of the application on 28 June 2013, Ms S Garland, Solicitor,appeared for the applicant. Ms Garland 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. She said that the flat Monday to Friday, Saturday and Sunday rates were largely inclusive of the Award penalty rates and submitted that this meant that the employees were better off overall. She said that the applicant employs six employees at the hotel and that other workers at the hotel were employed by another entity and covered by an expired certified agreement. It was the intention to have the other employees covered by that certified agreement transferred to the coverage of this Agreement. 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.

[4] 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 Oscars Hotels Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 5 July 2013 and have a nominal expiry date of 4 July 2017.

DEPUTY PRESIDENT

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