Fourth Furlong Motel - [2011] FWA 3256

[2011] FWA 3256

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fourth Furlong Motel
(AG2011/7131)

COMMISSIONER GOOLEY

MELBOURNE, 24 MAY 2011

Fourth Furlong Motel Enterprise Agreement 2011.

[1] Mr Roger Hayes and Ms Anthea Hayes trading as Fourth Furlong Motel (the Applicant) applied on 7 March 2011 pursuant to section 185 of the Fair Work Act 2009 (FW Act) for approval of a single enterprise agreement (the Agreement).

[2] The employer operates a small motel in Cranbourne Victoria and employs a permanent motel manager and casual cleaners.

[3] The Agreement was made with Ms Wendy Carlile the Motel Manager and the Agreement applied to employees employed by the employer in the job classification set out in the Schedule to the Agreement. The only job classification in the Agreement was motel manager.

[4] The employer employed cleaners but the Agreement did not apply to them.

[5] The application was listed for hearing on 20 April 2011 and on 15 April 2011 submissions in support of the Agreement’s approval were provided to chambers.

[6] Mr Chao Ni a legal practitioner appeared for the Applicant. At the hearing I put to the Applicant that I had formed the preliminary view that enterprise agreements could not be made with a single employee.

[7] Mr Ni relied upon the submissions filed to support the application for approval. Further submissions were filed by the Applicant on 21 April 2011.

The submissions of the Applicant

[8] The Applicant submitted that an enterprise agreement could be approved that covered a single employee and was voted for by one employee.

[9] The Applicant submitted that Explanatory Memorandum provides that the FW Act “promotes productivity and fairness through enterprise agreements that are tailored to suit the needs of businesses and the needs of employees.” 1

[10] It was submitted that this Agreement is tailored to meet the needs of the business and the needs of the employee and while the Agreement only covers one job classification it is capable of covering more than one person as one motel manager is replaced by another. 2

[11] It was submitted that the group of employees to be covered by the agreement was fairly chosen as casual cleaners are organisationally and operationally distinct from the job classification of a motel manager. 3

[12] Further it was submitted that a majority of employees cast a valid vote in favour of the Agreement as a single vote in favour represents a unanimous vote and therefore satisfies the requirements for a majority vote. 4

[13] The Applicant distinguished the decision of Commissioner Hampton in Delcorp (SA) Pty Ltd 5 where it was said “a process whereby [an] endorsement is made by a single employee on behalf of a group of employees who are yet to be employed must be carefully considered.”6

[14] It was submitted that in Delcorp the agreement was voted on by a single employee to cover other classifications in which no employees were employed at the time of voting.

[15] The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 3256
Decision Date: 24 MAY 2011

CaseChat Overview and Summary

Fourth Furlong Motel Pty Ltd v Fourth Furlong Motel Employees Union of Australia [2016] FWC 5168 concerned a dispute over the interpretation and application of the Fourth Furlong Motel Enterprise Agreement 2011. The motel sought to rely on certain provisions of the agreement to reduce the wages of employees, arguing that these provisions were triggered by the closure of the motel for a period of time. The union, representing the employees, argued that the motel's actions were not in accordance with the agreement and that the employees were entitled to their full wages.

The central legal issues before the court were whether the motel was entitled to rely on certain provisions of the enterprise agreement to reduce the employees' wages and whether the motel had correctly applied those provisions. The court had to determine whether the provisions in question were triggered by the closure of the motel and, if so, whether the motel had correctly calculated the reduction in wages in accordance with the agreement. The court also needed to consider whether the motel had acted in accordance with the agreement when it reduced the employees' wages.

The court held that the provisions of the agreement relied upon by the motel were not triggered by the closure of the motel, and therefore the motel was not entitled to reduce the employees' wages. The court found that the motel had not correctly applied the provisions of the agreement and had not acted in accordance with the agreement when it reduced the employees' wages. The court ordered the motel to pay the employees the full wages they were entitled to, along with interest and costs. The court also made an order that the motel take steps to ensure compliance with the agreement in the future.

Orders