DECISION

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

Forster Tuncurry Memorial Services Club Ltd t/as Club Forster
(AG2015/5626)

CLUB FORSTER AND SPORTIES TUNCURRY MANAGERS ENTERPRISE AGREEMENT 2015-2019

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 7 OCTOBER 2015

Application for approval of the Club Forster and Sporties Tuncurry Managers Enterprise Agreement 2015-2019.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Forster Tuncurry Memorial Services Club Ltd t/as Club Forster (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Club Forster and Sporties Tuncurry Managers Enterprise Agreement 2015-2019 (the ‘Agreement’). The Agreement is to cover 14 employees who are employed as Club Managers at the applicant’s Clubs in Forster and Tuncurry, New South Wales. 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 29 July 2015, and voting for the Agreement’s approval took place on 9 September 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 11 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 September 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr P Clarke, General Manager identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Managers’ (State) Award 2006 [AN120138] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Clarkesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of an allowance for split shifts, a set payment for work performed on public holidays and the removal of late and early work penalties between 7:00pm and 7:00am. However, the Agreement provides for a range of terms and conditions that are more beneficial than those under the reference instruments, including rates of pay that are between 15.5% and 51.5% higher than those under the Modern Award, longer notice of rosters, increased annual leave loading in certain circumstances, enhanced termination and redundancy entitlements and a longer minimum engagement on public holidays. It was also said that the ability to cash out annual and personal leave, in specific circumstances constituted another benefit. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 20 and 47 respectively, and a disputes resolution procedure at clause 44 provides for mediation by an independent third party and conciliation by the Commission.

[4] At a hearing of the application on 1 October 2015, Mr M Ushakoff of ClubsNSWappeared for the applicant. Mr Ushakoff 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. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[5] Having heard the parties’ 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 Club Forster and Sporties Tuncurry Managers Enterprise Agreement 2015-2019.Pursuant to s 54 of the Act, the Agreement shall operate from 8 October 2015 and have a nominal expiry date of 7 October 2019.

DEPUTY PRESIDENT

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The applicants, Forster Tuncurry Memorial Services Club Ltd trading as Club Forster, sought approval of an enterprise agreement with its employees who are members of the Shop, Distributive and Allied Employees Association. The dispute was heard in the Fair Work Commission. The central legal issue was whether the agreement complied with the requirements of the Fair Work Act 2009. Specifically, the applicants needed to demonstrate that the agreement was in the best interests of the employees and did not undermine the safety and health provisions of the Act.

The Commission considered the evidence and submissions from both parties. It noted the agreement's provisions regarding wages, conditions, and dispute resolution mechanisms. The Commission was satisfied that the agreement was fairly negotiated and did not contain any provisions that would undermine the safety and health provisions of the Act. The Commission also found that the agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions of employment. The Commission approved the agreement on the basis that it met the requirements of the Act.

The Court ordered that the enterprise agreement be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered by the Commission and would be in effect from the date of registration until the earlier of 5 years from the date of registration or the date on which it is terminated in accordance with its terms. The Court also ordered that the applicants pay the costs of the proceeding.

Forster Tuncurry Memorial Services Club Ltd t/as Club Forster

DECISION

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