FreeSpirit Resorts Pty Ltd

[2015] FWCA 2966

[2015] FWCA 2966

FAIR WORK COMMISSION

DECISION

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

FreeSpirit Resorts Pty Ltd
(AG2015/2392)

FREESPIRIT EMPLOYMENT AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 MAY 2015

Application for approval of the FreeSpirit Employment Agreement 2015..

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by FreeSpirit Resorts Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the FreeSpirit Employment Agreement 2015 (the ‘Agreement’). The Agreement is to cover 91 employees who are employed at the applicant’s resorts and holiday parks in Queensland, Western Australia and the Northern Territory.

[2] The employees were last notified of their representational rights on 10 March 2015 and voting for the Agreement’s approval took place between 2 and 8 April 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 65 of the 79 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 April 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Y Bristow, Chief Operating Officer, 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 Bristowsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instrument and that there are no less beneficial terms. However, this is not strictly true, as the Agreement provides for higher rates of pay into which a number of penalty rates and allowances are ‘loaded’. Nevertheless, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 50 and 51 respectively, and a disputes resolution procedure at clause 45 erroneously refers to resolution by the Fair Work Ombudsman, which I take to be a reference to the Commission.

[4] At a hearing of the application on 27 April 2015, Ms Y Bristow and Ms D Seeney appeared for the applicant. Ms Bristow 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. She explained that a BOOT analysis had been conducted based on indicative rosters. This analysis demonstrated that the employees were ‘better off overall’ in all circumstances.

[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 FreeSpirit Employment Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 4 May 2015 and have a nominal expiry date of 3 May 2019.

DEPUTY PRESIDENT

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