Frasers Sydney ML Hotel Pty Ltd t/as Novotel Rockford Darling Harbour

[2015] FWCA 5855

[2015] FWCA 5855

FAIR WORK COMMISSION

DECISION

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

Frasers Sydney ML Hotel Pty Ltd t/as Novotel Rockford Darling Harbour
(AG2015/4615)

ROCKFORD HOTELS NSW ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 AUGUST 2015

Application for approval of the Rockford Hotels NSW Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Frasers Sydney ML Hotel Pty Ltd t/as Novotel Rockford Darling Harbour (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Rockford Hotels NSW Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with two nominated Employee Bargaining Representatives (EBRs) and is to cover 74 employees, apart from Management and some specialist employees, who are employed at the applicant’s hotel in Sydney, 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 2 June 2015 and voting for the Agreement’s approval took place on 29 and 30 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 17 of the 20 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 August 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Emery, General Manager,identified the Hospitality Industry (General) Award 2010 [MA000009] and the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Emerysaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including changes to overtime entitlements and penalty rates for work performed on public holidays and roster change notification. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 19 and 20 respectively, and a disputes resolution procedure at clause 18 erroneously refers to Fair Work Australia, which I take as providing for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 20 August 2015, Mr P Emery appeared with Ms N Alameddine for the applicant and Ms S Browne and Ms S Rapana appeared in their respective capacities as EBRs. Mr Emery 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 Agreement provided for increases to rates of pay of 3% on 1 July 2015, 1 July 2016, 1 July 2017 and 1 July 2018. Ms Browne and Ms Rapana supported the submissions of Mr Emery. Ms Browne and Ms Rapana had each filed Declarations in relation to the application (Form F18A) indicating that the employees they represented supported the approval of the Agreement.

[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 Rockford Hotels NSW Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 27 August 2015 and have a nominal expiry date of 26 August 2019.

DEPUTY PRESIDENT

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