DECISION

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

Earlturn Pty Ltd T/A Holiday Cairns Management Group
(AG2015/1751)

HOLIDAY CAIRNS MANAGEMENT GROUP EMPLOYEES ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 6 MARCH 2015

Application for approval of the Holiday Cairns Management Group Employees Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Earlturn Pty Ltd t/as Holiday Cairns Management Group (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Holiday Cairns Management Group Employees Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with Ms J Sevil, an Employee Bargaining Representative and is to cover 23 employees who are engaged in the provision of tourist accommodation in Cairns, Queensland.

[2] The employees were last notified of their representational rights on 12 November 2014 and voting for the Agreement’s approval took place on 15 January 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the approval of the Agreement, all 20 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 29 January 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms R Small, Director identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Smallsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including changes to ordinary hours of work, reduced penalty rates for work performed late in the evening and early in the morning and reduced minimum engagements on public holidays. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instrument, including higher rates of pay and the payment of a ‘language allowance’ for employees required to use dual language skills. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 39 and 40 respectively, and a disputes resolution procedure at clause 41 provides for conciliation and consent arbitration by the Commission.

[4] Having reviewed 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 Holiday Cairns Management Group Employees Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 19 February 2015 and have a nominal expiry date of 18 February 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Earlturn Pty Ltd, trading as the Holiday Cairns Management Group, applied for approval of the Holiday Cairns Management Group Employees Enterprise Agreement 2014. The dispute centred on whether the agreement complied with the Fair Work Act 2009 and whether it met the relevant criteria for approval, including its coverage of minimum entitlements and its compliance with the Better Off Overall Test (BOOT). The applicants were represented by their employer, while the employees were represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The court had to determine whether the agreement was a genuine enterprise agreement, if it adhered to the procedural fairness requirements, and if it satisfied the BOOT.

The court examined the procedural aspects of the agreement, assessing whether the necessary steps were taken to facilitate its creation, including the provision of relevant information to the employees and their union. The court also evaluated the substantive content of the agreement, ensuring it did not disadvantage employees in terms of their wages and conditions compared to the relevant award or safety net. The court further considered the BOOT, which requires that the agreement be at least as good as the applicable award or safety net. The court found that the agreement had been created in a procedurally fair manner and that it did not disadvantage the employees in terms of wages and conditions. Additionally, the agreement was deemed to meet the BOOT as it provided for certain benefits that were not explicitly covered under the applicable award.

Following the court's analysis, it was determined that the Holiday Cairns Management Group Employees Enterprise Agreement 2014 met all the statutory requirements and was approved. The agreement was found to be a genuine enterprise agreement, compliant with the procedural fairness requirements, and it satisfied the BOOT. Consequently, the court issued an order approving the agreement, which will now be binding on the employees and the employer as per the terms outlined in the agreement.

Earlturn Pty Ltd T/A Holiday Cairns Management Group

DECISION

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