Essendon Football Club

[2013] FWCA 5466

[2013] FWCA 5466

FAIR WORK COMMISSION

DECISION

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

Essendon Football Club
(AG2013/7298)

ESSENDON FOOTBALL CLUB (WINDY HILL EMPLOYEES) ENTERPRISE AGREEMENT 2013

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 8 AUGUST 2013

Application for approval of the Essendon Football Club (Windy Hill Employees) Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Essendon Football Club (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Essendon Football Club (Windy Hill Employees) Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 58 employees who are employed in relation to general bar duties, bistro and gaming facilities in Essendon, Victoria. 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 20 March 2013, and voting for the Agreement’s approval took place on 28 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a voting process in which employees had the choice of casting a written vote or casting a vote over the phone on 19 June 2013, 27 of the 29 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Burton, General Manager, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Licensed Clubs (Victoria) Award 1998 [AP787060] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Burtonsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for nights, weekends and public holidays and the removal of a meal allowance where the employee works a shift at short notice. However, the agreement provides for higher rates of pay into which the aforementioned penalty rates are said to have been loaded. It was also said that another benefit was the ability to cash out annual leave in certain circumstances. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 6 respectively, and a disputes resolution procedure at clause 7 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 11 July 2013, Mr N Tindley, of FCB Groupappeared with Mr A Burton for the applicant. Mr Tindley 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 employees had previously been covered by an old collective agreement made in 2004. In response to my concerns in relation to a lack of provision for overtime and the ‘loaded’ rates of pay set out in the Agreement satisfying the BOOT, Mr Tindley offered undertakings increasing the ordinary base rates of pay and providing for overtime penalty rates of 150% to be paid where an employee works more than 114 hours (for Level 1 or Level 2 workers) or 120 hours (for Supervisors and Senior Supervisors) over a three week period. Undertakings were also provided so that rates of pay were to be adjusted by 2.75% on 1 July 2014 and 1 July 2015, rather than on 1 November 2014 and 1 November 2015. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement and marked as ‘Annexure A’. Having received these undertakings, I am satisfied that the Agreement passes the BOOT.

[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, 188, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Essendon Football Club (Windy Hill Employees) Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 18 July 2013 and have a nominal expiry date of 30 October 2016.

DEPUTY PRESIDENT

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