KBRV Resort Operations Pty Ltd

[2013] FWCA 8191

[2013] FWCA 8191

FAIR WORK COMMISSION

DECISION

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

KBRV Resort Operations Pty Ltd
(AG2013/10709)

KINGFISHER BAY RESORT AND VILLAGE ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 24 OCTOBER 2013

Application for approval of the Kingfisher Bay Resort and Village Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by KBRV Resort Operations 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 Kingfisher Bay Resort and Village Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 174 employees who are engaged at the Kingfisher Bay Resort & Village on Fraser Island, Queensland. 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 August 2013, and voting for the Agreement’s approval took place on Friday 20 September 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 41 of the 65 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Smith, Director, identified the Hospitality Industry (General) Award 2010 [MA000009] as applicable to apprentices only and the Kingfisher Bay Resort and Village Award 2003 [AN140153] applicable to all other employees, as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Smithsaid 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 instruments and that there are no less beneficial terms. The Agreement provides for rates of pay which are slightly higher than the former enterprise Award, but in a few cases less than the Modern Award.

[4] Mr C Lentini of the Queensland Hotels Association cited Item 18(2) of part 4 of Schedule 7 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 and relied on a number of the Commission’s decisions to submit that the relevant comparator for the BOOT is the Modern Award for apprentices and the Enterprise Award for all other employees; See: University of New South Wales (Professional Staff) Enterprise Agreement 2010 [2010] FWAA 9588; National Tertiary Education Industry Union v University of New South Wales[2011] FWAFB 5163; News Group - AMWU Metropolitan Printing Agreement 2011 [2012] FWAA 3900; and Friendly Society Medical Association Limited (National Pharmacies) and the Association of Professional Engineers, Scientists and Managers, Australia Certified Agreement 2012 [2012] FWAA 3146.

[5] The former Award provided for a 40 hour week and the new Agreement provides for a 38 hour week. Rates of pay are to be adjusted in line with the Commission’s Annual Minimum Wage Review decisions. While the Agreement provides for a 50% casual loading, there is presently no casual employees engaged at the resort. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 2.1 and 4.6 respectively, and a disputes resolution procedure at clause 3.1 provides for conciliation and arbitration by the Commission.

[6] At a hearing of the application on 10 October 2013, Mr C Lentini of the Queensland Hotels Association,appeared with Mr D Haye, General Manager and Mr G Smith, Managing Director, for the applicant. Mr Lentini 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. Mr Lentini said that of the 174 employees covered by the Agreement, about 80 live on the island and pay accommodation and meal costs to the employer. The present rates are lower than the meals and accommodation rates in the Award. These costs will be adjusted annually by reference to the 8 Capital Cities CPI. Mr Lentini said that the Agreement will ensure that all employees, including apprentices, will be covered by a single enterprise agreement. In respect to wage rates, Mr Lentini provided an undertaking that from the commencement of the Agreement on 1 January 2014, no employee will be paid less than the base rate under the Modern Award. I accept that undertaking and pursuant to s 191(1) of the Act, it will become a term of the Agreement. The undertaking is annexured to this decision as ‘Annexure A’.

[7] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation, the further documentation provided by the applicant and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187, 188, 190 and 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Kingfisher Bay Resort and Village Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 1 January 2014 and have a nominal expiry date of 31 December 2017.

DEPUTY PRESIDENT

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