K & P Noack Pty Ltd T/A The Rising Sun Hotel

[2015] FWCA 2674

[2015] FWCA 2674

FAIR WORK COMMISSION

DECISION

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

K & P Noack Pty Ltd T/A The Rising Sun Hotel
(AG2015/2272)

RISING SUN HOTEL/UNITED VOICE ENTERPRISE AGREEMENT 2015-2018

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 20 APRIL 2015

Application for approval of the Rising Sun Hotel/United Voice Enterprise Agreement 2015-2018.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by K & P Noack Pty Ltd t/as The Rising Sun Hotel (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Rising Sun Hotel/United Voice Enterprise Agreement 2015-2018 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 12 employees who are employed at the applicant’s hotel in Auburn, South Australia. 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 27 January 2015 and voting for the Agreement’s approval took place between 13 and 16 March 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 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 27 March 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Noack, Hotel Manager identified the Hospitality Industry (General) Award 2010 [MA000009], the Hotels, Clubs, Etc., Award [AN150066] and the Clerks (Clubs, Hotels and Motels) Award [AN150037] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Noacksaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments in that there are reduced penalty rates for casual employees on Sundays and public holidays. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher base rates of pay, more generous loadings for casual employees on Monday to Friday and more generous penalty rates for permanent part time and full time employees for work performed on weekends. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 15 and 16 respectively, and a disputes resolution procedure at clause 17 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 13 April 2015, Mr O Webb of the Australian Hotels Association,appeared with Ms S Noack for the applicant and Mr N Thompson for the Union. Mr Webb 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 base rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. Mr Thompson supported the submissions of Mr Webb. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by 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 Rising Sun Hotel/United Voice Enterprise Agreement 2015-2018.Pursuant to s 54 of the Act, the Agreement shall operate from 20 April 2015 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

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