Kakadu Tourism (GCH) Pty Ltd T/A Mecure Kakadu Crocodile Hotel

[2014] FWCA 7232

[2014] FWCA 7232

FAIR WORK COMMISSION

DECISION

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

Kakadu Tourism (GCH) Pty Ltd T/A Mecure Kakadu Crocodile Hotel
(AG2014/9156)

KAKADU CROCODILE HOTEL ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 OCTOBER 2014

Application for approval of the Kakadu Crocodile Hotel Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Kakadu Tourism (GCH) Pty. Ltd. t/as Mercure Kakadu Crocodile Hotel (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Kakadu Crocodile Hotel Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and five non-Union Employee Bargaining Representatives. The Agreement is to cover 36 employees who are employed at the applicant’s hotel in Jabiru, Northern Territory. 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 14 April 2014 and voting for the Agreement’s approval took place between 29 August and 4 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 19 of the 25 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 September 2014. While this is outside the time limit contemplated in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for filing the application to 25 September 2014 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr K McNaught, Executive Officer identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’).

• Hospitality Industry (General) Award 2010 [MA000009];



• Amusement, Events and Recreation Award 2010 [MA000080];



• Live Performance Award 2010 [MA000081]; and



• Hotels, Motels, Wine Saloons, Accommodation, Clubs and Casino Employees (Northern Territory) Award 2002 [AP812953].

[4] Mr McNaughtsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, in that the Agreement does not provide for penalty rates for work performed on weekends and public holidays or annual leave loading. However, these terms have been ‘loaded’ into higher base rates of pay. The Agreement also provides for multi-hire arrangements. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 2.6 and 3.1 respectively, and a disputes resolution procedure at clause 3.2 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 8 October 2014, Mr R Cannell of Robert Cannell and Associates appeared with Ms C Tierney and Mr D Lukritz for the applicant, Ms E Early appeared for the Union and Ms H McElhinney, Mr S Bates and Mr N Pember appeared in their respective capacities as EBRs. 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. Mr Cannell 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 calculations performed in relation to the wage structure of the Agreement and the applicant’s rosters, demonstrated that Full-Time and Part-Time employees were better off by a margin of 2.8% and that salaried employees were better off by approximately 2.4%. Ms Early, Ms McElihnney, Mr Bates and Mr Pember supported the submissions of Mr Cannell and indicated that they were happy with the Agreement.

[6] 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 Kakadu Crocodile Hotel Enterprise Agreement 2014.Pursuant to s 54 of the Act and in accordance with the request of the parties, the Agreement shall operate from 22 October 2014 and have a nominal expiry date of 1 October 2018.

DEPUTY PRESIDENT

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