Felicity Hotel Pty Ltd t/as Four Points by Sheraton Brisbane

[2014] FWCA 2249

[2014] FWCA 2249

FAIR WORK COMMISSION

DECISION

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

Felicity Hotel Pty Ltd t/as Four Points by Sheraton Brisbane
(AG2014/4079)

FOUR POINTS BY SHERATON BRISBANE ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 APRIL 2014

Application for approval of the Four Points by Sheraton Brisbane Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Felicity Hotel Pty Ltd t/as Four Points by Sheraton Brisbane (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Four Points By Sheraton Brisbane Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 46 employees who are engaged at the applicant’s hotel in Brisbane, Queensland.

[2] The employees were last notified of their representational rights on 10 February 2014, and voting for the Agreement’s approval took place between 7 and 10 March 2014. The time limits under s 181(2) of the Act are thereby satisfied. In an electronic vote conducted by an independent third party provider, 15 of the 19 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms K Millar, Human Resources Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Millarsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instrument, in that the Agreement does not provide for penalty rates for work performed on Saturday or Sunday and the penalty rates for work performed on public holidays are lower. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the Award, including higher base rates of pay and an allowance to be paid to bilingual and multilingual employees. It was also said that another benefit was the ability to cash out annual leave in certain circumstances. 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 30 and 33 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 2 April 2014, Ms D Allison of the National Retail Association Limited,appeared for the applicant. Ms Allison 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. Ms Allison explained that the base rates of pay under the Agreement were between 16.16% and 18.58% higher than those under the Award. She also said that the employer engaged no casual employees and that the majority of the employees were permanent part time.

[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 Four Points by Sheraton Brisbane Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 9 April 2014 and have a nominal expiry date of 31 January 2017.

DEPUTY PRESIDENT

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