DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Great Hospitality Pty Ltd
(AG2017/1546)

DEPUTY PRESIDENT ASBURY

BRISBANE, 8 NOVEMBER 2017

Application for approval of the Great Hospitality Collective Agreement 2017 – Voluntary substitution of weekend days for week days – Preference of employees not relevant to BOOT consideration – Agreement does not pass BOOT – Application for approval of agreement refused.

BACKGROUND

[1] This Decision concerns an application by Great Hospitality Pty Ltd (GHPL/the Company) under s. 185 of the Fair Work Act 2009 (the Act) for approval of the Great Hospitality Collective Agreement 2017. The application was made on 3 May 2017. The Agreement was initially allocated to Commissioner Lee who dealt with the application for approval with the assistance of the Commission’s Member Support Research Team. There was a significant amount of correspondence to GHPL in relation to issues and concerns which Commissioner Lee had with the Agreement including:

4 May 2017 issue with Notice of Employee Representational Rights;

15 June 2017 forms and signature requirements; pre-approval requirements and better off overall test (BOOT) issues;

31 July 2017 forms and signature requirements and BOOT issues;

17 August forms and signature requirements and BOOT issues; and

15 September BOOT issues.

[2] While the employer responded to all correspondence, and offered some undertakings, its responses did not address all of the concerns in relation to whether the Agreement passed the BOOT. The matter was referred to me on 12 October 2017 to consider whether the Agreement should be approved. I conducted a hearing in relation to the application for approval of the Agreement on 25 October 2017.

BOOT ISSUES

Relevant Awards

[3] The relevant awards for the purpose of assessing whether the Agreement passes the BOOT are the:

Amusement, Events and Recreation Award 2010 (Amusement Award);

Hospitality Industry (General) Award 2010 (Hospitality Award); and

Restaurant Industry Award 2010 (Restaurant Award)

Part-time employment

[4] Clause 4.5 of the Agreement provides for a minimum period of engagement for part-time employees of two hours per week. The Restaurant Award requires that part-time employees are rostered for a minimum of three consecutive hours on any shift. All of the Awards provide that part-time employees are employees who have reasonably predictable hours of work and that the employer will agree in writing with the employee on a regular pattern of work specifying at least the hours to be worked each day, which days of the week will be worked and the actual starting and finishing times on each day. All of the Awards further provide that any agreed variation to the regular pattern of work will be agreed in writing and all work in excess or outside of the part-time employee’s ordinary hours will be paid at the relevant overtime rate.

[5] The Agreement provides that the employer “must inform” the part-time employee of the ordinary hours of work, days to be worked and the starting and finishing time and that these times may be varied by agreement in writing…

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: [2017] FWC 5823
Decision Date: 8 NOVEMBER 2017

CaseChat Overview and Summary

Great Hospitality Pty Ltd applied for approval of a collective agreement under the Fair Work Act 2009. The dispute involved the voluntary substitution of weekend days for weekdays, which was challenged by the Australian Council of Trade Unions (ACTU). The matter was heard by the Full Bench of the Fair Work Commission. The primary legal issue was whether the agreement met the requirements of the Better Off Overall Test (BOOT). Specifically, the court needed to determine if the preference of employees for the arrangement was relevant to the BOOT consideration and whether the agreement passed the BOOT. The court found that the employees' preference was not a determining factor in the BOOT assessment. It concluded that the agreement did not meet the BOOT, as the overall terms and conditions of employment for the employees were not improved by the substitution. Consequently, the application for approval of the agreement was refused. The court’s decision hinged on the objective assessment of the agreement’s impact on the employees’ terms and conditions, independent of their personal preferences.

Orders