EI Administrative Services Pty Ltd

[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 approved by the Commission. She said that the Agreement provides for two pay rate structures, one providing for a higher flat rate of pay Monday to Sunday and one providing for weekend penalty rates. She explained that the employer had a client that had two sites, one of which is open Monday to Friday.

[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. I note that the Agreement received unanimous support from the relevant employees. Accordingly, I approve a single enterprise agreement known as the EI Hospitality Services Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 3 July 2013 and have a nominal expiry date of 2 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established