Kedron Wavell Services Club Inc.

[2014] FWCA 905

[2014] FWCA 905

FAIR WORK COMMISSION

DECISION

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

Kedron Wavell Services Club Inc.
(AG2014/3428)

KEDRON-WAVELL SERVICES CLUB INC. ENTERPRISE AGREEMENT 2013

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 7 FEBRUARY 2014

Application for approval of the Kedron-Wavell Services Club Inc. Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Kedron Wavell Services Club Inc. (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Kedron-Wavell Services Club Inc. Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and four non-Union Employee Bargaining Representatives. The Agreement is to cover 135 employees who are employed at the applicant’s Club apart from the General Manager, salaried employees and employees who are paid at base rates equivalent Level 7 and above under the Registered and Licensed Clubs Award 2010. 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 8 July 2013, and voting for the Agreement’s approval took place between 11 and 17 December 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 52 of the 100 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 January 2014. While I note that this is beyond the statutory period contemplated in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for filing to 17 January 2014 (s 185(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr L Broome, Secretary/Manager identified the Registered and Licensed Clubs Award 2010 [MA000058] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Broomesaid 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 instrument and that there are no less beneficial terms, though it was plain the comparison was with the previous enterprise agreement. The Agreement provides for higher rates of pay, a toilet cleaning allowance and more generous rest break entitlements. 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 6 and 7.1 respectively, and a disputes resolution procedure at clause 7.2 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 28 January 2014, Mr L Broome and Ms C Mason appeared for the applicant and Mr S Ong for the Union. 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 Broome 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 in the Agreement were 4% higher than those under the Modern Award. Mr Ong supported the submissions of Mr Broome and confirmed that the Union supported the approval of 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 Kedron-Wavell Services Club Inc. Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 4 February 2014 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, AE406742  PR547499>