Delron Cleaning Pty Ltd t/as Delron Hospitality Management

[2014] FWCA 2423

[2014] FWCA 2423

FAIR WORK COMMISSION

DECISION

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

Delron Cleaning Pty Ltd t/as Delron Hospitality Management
(AG2014/5128)

DELRON CLEANING PTY LTD (PROSPECTOR AND AVON LINK/MERREDIN ON-TRAIN CUSTOMER SERVICE OFFICERS) ENTERPRISE AGREEMENT 2013

Rail Industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 APRIL 2014

Application for approval of the Delron Cleaning Pty Ltd (Prospector and Avon Link/Merredin On-Train Customer Service Officers) Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Delron Cleaning Pty Ltd t/as Delron Hospitality Management (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Delron Cleaning Pty Ltd (Prospector and Avon Link/Merredin On-Train Customer Service Officers) Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Rail, Tram and Bus Industry Union (the ‘Union’). The Agreement is to cover 19 employees who are engaged by the applicant as on-train customer service officers in Perth, Western Australia. 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 7 November 2012, and voting for the Agreement’s approval took place on 11 March 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 10 of the 19 employees who voted in the ballot, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms R Connelly, Managing Director, identified the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Hospitality Award’) ‘or perhaps’ the Rail Industry Award 2010 [MA000015] (the ‘Rail Award’) as well as the Prospector and AvonLink on Train Customer Service Officers Award [AN160264] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Connellysaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, shift penalty rates and a number of additional allowances. Rates of pay are to be increased by 3.4% on 1 July 2012, 3.25% on 1 July 2013, 3.25% on 1 July 2014, 3.25% on 1 July 2015 and 3.25% on 1 July 2016. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 8 respectively, and a disputes resolution procedure at clause 9 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 9 April 2014, Mr D Jones of the Chamber of Commerce and Industry of Western Australiaappeared with Ms J Rose-Powner and Mr R Catalano for the applicant and Mr K Singh appeared with Mr P Robinson 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. However, the Union’s F18 set out that it did not support the approval of the Agreement on the basis that the Agreement identified the Hospitality Award as the ‘relevant Award’ rather than the Rail Award. Even so, Mr Jones and Mr Singh agreed that whichever of the two reference instruments was used as the comparison instrument, the Agreement would pass the BOOT. With this in mind, I made no formal finding as to which Award was the appropriate reference instrument. With the agreement of the parties, I determined that I would approve the Agreement on the understanding that the reference to the Hospitality Award in the F17 could not be used as a precedent in any future proceedings in which the question of which Award would ordinarily cover employees of the applicant, might arise.

[5] Mr Jones 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. Mr Jones also said that the pay increases due on 1 July 2012 and 1 July 2013 under the Agreement would be backpaid to the employees.

[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 Delron Cleaning Pty Ltd (Prospector and Avon Link/Merredin On-Train Customer Services Officers) Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 16 April 2014 and have a nominal expiry date of 30 June 2017.

DEPUTY PRESIDENT

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