Karen Bay Pty Ltd and Magwes Holdings Pty Ltd T/A Sportsman Tavern

[2015] FWCA 1924

[2015] FWCA 1924

FAIR WORK COMMISSION

DECISION

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

Karen Bay Pty Ltd and Magwes Holdings Pty Ltd T/A Sportsman Tavern
(AG2015/2000)

SPORTSMAN TAVERN/UNITED VOICE ENTERPRISE AGREEMENT 2015-2018

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 20 MARCH 2015

Application for approval of the Sportsman Tavern/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 Karen Bay Pty Ltd and Magwes Holdings Pty ltd t/as Sportsman Hotel (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sportsman Tavern/United Voice Enterprise Agreement 2015-2018 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 20 employees who are employed at the applicant’s hotel in Solomontown, South Australia.

[2] The employees were last notified of their representational rights on 22 December 2014, and voting for the Agreement’s approval took place between 15 and 18 February 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 19 of the 20 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 February 2015, thereby satisfying s 185(3) of the Act.

In the Employer’s Declaration in support of the application (Form F17) Mr M Hall, Hotel Operations 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’). Mr Hallsaid 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 Saturdays. 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.

[3] At a hearing of the application on 13 March 2015, Mr O Webb and Ms S Legoe of the Australian Hotels Associationappeared for the applicant and Ms M Sullivan 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 rates of pay are to be increased by 3.5% on 1 July of each year during the Agreement’s nominal term. Ms Sullivan 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.

[4] 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 Sportsman Tavern/United Voice Enterprise Agreement 2015-2018.Pursuant to s 54 of the Act, the Agreement shall operate from 20 March 2015 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

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