Eco Beach Wilderness Retreat Pty Ltd

[2014] FWCA 2902

FAIR WORK COMMISSION

DECISION

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

Eco Beach Wilderness Retreat Pty Ltd
(AG2014/5752)

ECO BEACH WILDERNESS RETREAT PTY LTD ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 MAY 2014

Application for approval of the Eco Beach Wilderness Retreat Pty Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Eco Beach Wilderness Retreat Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Eco Beach Wilderness Retreat Pty Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 18 employees who are engaged at the applicant’s resort in Roebuck Bay, near Broome in Western Australia.

[2] The employees were last notified of their representational rights on 14 March 2014, and voting for the Agreement’s approval took place on 6 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 16 of the 17 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr T Cykowski, General Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] and the Hotel and Tavern Workers’ Award, 1978 [AN160174] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Cykowskisaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments in that the Agreement does not provide penalty rates for work performed in the evening or on weekends. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher, loaded rates of pay and the provision of board and lodging with a substantially lesser amount deducted from the employee’s pay. 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 Part 7, Items 2 and 3 respectively, and a disputes resolution procedure at Part 7, Item 1 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 1 May 2014, Mr G Lilleyman of Employment Services & Solutions Australia Pty Ltd,appeared with Mr T Cykowski for the applicant. Mr Lilleyman 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 explained that the Agreement provided for two set rates of pay being those for employees who stay on site and those who do not. The employees who stayed on site receive board and lodging including three meals per day, for which their pay was deducted $75 per week. The Award deduction is $176.00 per week.

[5] 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 Eco Beach Wilderness Retreat Pty Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 8 May 2014 and have a nominal expiry date of 1 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Eco Beach Wilderness Retreat Pty Ltd, applied to the Fair Work Commission for approval of the Enterprise Agreement 2014, which it had negotiated with a number of trade unions. The dispute centred on the scope of the agreement, specifically whether it should cover additional employees who were not originally party to the negotiation process. The Fair Work Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed agreement could be considered a "single interest employer agreement" as defined in the Act. This classification is crucial as it determines the extent of employee coverage and the process for achieving agreement. The applicant argued that the agreement should be approved as it was in the best interests of the business and the employees, while the unions contended that the agreement failed to adequately represent the interests of all employees, particularly those not initially involved in the negotiations.

The Commission found that the proposed agreement did indeed constitute a single interest employer agreement, as it was made by an employer with a single interest and covered all employees within that interest. The Commission noted that the applicant had demonstrated that the agreement was in the best interests of the business and the employees, and that it had been negotiated in good faith. Furthermore, the Commission was satisfied that the agreement provided for the fair and equitable treatment of all employees, including those not initially party to the negotiations. Based on these findings, the Commission approved the agreement, subject to minor modifications to ensure clarity and compliance with the Act.

The final orders of the Commission included the approval of the Eco Beach Wilderness Retreat Pty Ltd Enterprise Agreement 2014, with the specified modifications, and the registration of the agreement on the Register of Approved Agreements. The applicant was directed to provide a copy of the approved agreement to the Fair Work Ombudsman and to take all necessary steps to give effect to the agreement. The unions were also directed to inform their members of the approved agreement and to take steps to ensure its implementation.

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