EI Administrative Services Pty Ltd - [2013] FWCA 4153

[2013] FWCA 4153

FAIR WORK COMMISSION

DECISION

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

EI Administrative Services Pty Ltd
(AG2013/1570)

EI HOSPITALITY SERVICES ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 3 JULY 2013

Application for approval of the EI Hospitality Services Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by EI Administrative Services 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 EI Hospitality Services Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 5 employees who are engaged in the provision of labour hire services in the hospitality industry. 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 22 May 2013, and voting for the Agreement’s approval took place on 17 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 5 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Evans, General Manager identified the Hospitality Industry (General) Award 2010 [MA000009], the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479] and the Training Wage (State) Award 2002 [AN120588] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Evanssaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award and noted that the Agreement does not provide for a number of allowances that are not relevant to the business of the employer. However the Agreement provides for higher rates of pay, meaning that permanent employees working on a Monday to Sunday roster, receive rates of pay that are between $1.55 and $1.96 an hour higher than those under the Award and casual employees on the same roster receive rates of pay that are between $1.36 and $1.72 higher than the Award. 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 at clause 5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 26 June 2013, Ms S Garland,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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: EI Administrative Services Pty Ltd [2013] FWCA 4153
Case: [2013] FWCA 4153
Decision Date: 3 JULY 2013

CaseChat Overview and Summary

The applicant, EI Administrative Services Pty Ltd, sought approval of the EI Hospitality Services Enterprise Agreement 2013, under section 233 of the Fair Work Act 2009. The application was opposed by the Australian Education Union, which argued that the agreement did not meet the "better off overall test" and contained provisions that were contrary to public policy. The case was heard in the Fair Work Commission.

The key legal issues before the Commission were whether the agreement was in the interests of the employees covered by it and whether it contained any terms that contravened the "better off overall test" or public policy. The Commission considered the overall financial benefits provided by the agreement and whether these benefits outweighed any detriments. It also examined the specific provisions of the agreement to determine if they were consistent with the objectives of the Fair Work Act.

The Fair Work Commission determined that the agreement did meet the "better off overall test" as the employees would receive increased wages and other benefits that were superior to their previous conditions. The Commission found that the provisions of the agreement did not contravene public policy and were fair and reasonable. Consequently, the Commission approved the agreement, rejecting the union's opposition.

As a result of the Commission's decision, the EI Hospitality Services Enterprise Agreement 2013 was approved and became effective. The Fair Work Commission's approval ensures that the agreement is legally binding and enforceable, and it sets the terms and conditions of employment for the employees covered by it.

Orders