Empire Holdings (Qld) Pty Ltd T/A Empire Hotel

[2024] FWCA 699

[2024] FWCA 699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Empire Holdings (Qld) Pty Ltd T/A Empire Hotel

(AG2024/71)

EMPIRE HOTEL – SINGLE ENTERPRISE AGREEMENT 2023

Hospitality industry
COMMISSIONER CONNOLLY	MELBOURNE, 22 FEBRUARY 2024

Application for approval of the Empire Hotel - Single Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Empire Hotel - Single Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Empire Holdings (Qld) Pty Ltd T/A Empire Hotel (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 25 January 2024.

1. The notification time for the Agreement under s.173(2) was 8 November 2023 and the Agreement was made on 13 December 2023.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 31 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the insertion of the previous name of the Agreement had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. It is noted that the pre-6 June 2023 version of the NERR appears to have been provided, however, in light of the considerations in s.188(5), I am satisfied that employees were not disadvantaged in this regard.

1. There is one National Employment Standards (NES) issue that requires comment:

·   Compassionate leave: The entitlement to compassionate leave provided by clause 5.2.3.1 of the agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s. 105 (1) (b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s. 105 (1) (c) of the Act. 

1. Clause 1.4.2 of the Agreement acts as an effective NES precedence clause, in that it states that “Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency”. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 19 February 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative(s) and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative(s) did not express any view on the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 November 2027.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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