Ettalong Memorial Bowling Club Ltd

[2017] FWCA 2616

[2017] FWCA 2616

FAIR WORK COMMISSION

DECISION

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

Ettalong Memorial Bowling Club Ltd
(AG2017/1368)

ETTALONG MEMORIAL BOWLING CLUB’S ENTERPRISE AGREEMENT 2017

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 16 MAY 2017

Application for approval of the Ettalong Memorial Bowling Club's Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ettalong Memorial Bowling Club (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Ettalong Memorial Bowling Club’s Enterprise Agreement 2017 (the ‘Agreement’). The Agreement was negotiated with United Voice – Liquor and Hospitality Division (the ‘Union’) and is to cover 69 employees who are engaged at the applicant’s Club premises in Ettalong, NSW. 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 6 November 2015, and voting for the Agreement’s approval took place from 28 March 2017 to 4 April 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 12 of the 13 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 19 April 2017. While I note that this is outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the time for filing to 19 April 2017 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr K Adams Assistant Manager, identified the Registered and Licensed Clubs Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Adams said that the Agreement provides for a number of terms which are more beneficial than the reference instrument, including more beneficial junior rates of pay, a higher loading for casual employees and more flexible hours of work for part time employees. Mr Adams also said the Agreement provides for some terms which are less beneficial than the reference instrument, including a longer period before meal breaks are required to be taken, no broken shift allowance, and fewer restrictions on when the applicant can direct its employees to take annual leave. Rates of pay are to be increased by 2.7% on the first full pay period from 1 July 2017, 1 July 2018 and 1 July 2019. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 11, 23 and 38 respectively, and a disputes resolution procedure at clause 35 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 5 May 2017, Ms L Pike, of the Registered and Licensed Clubs Association of New South Walesappeared for the applicant with Mr Adams and Mr D Holder, Assistant Secretary appeared for the Union. Ms Pike 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. Mr Holder said the Union had elected not to file a Declaration in relation to the application (Form 18). He submitted that the Union neither supported nor opposed the approval of the Agreement and that it did not wish to be covered by the Agreement, pursuant to s 183.

[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 Ettalong Memorial Bowling Club’s Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 12 May 2017 and have a nominal expiry date of 12 May 2020.

DEPUTY PRESIDENT

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