Keydane Pty Ltd

[2013] FWCA 8403

[2013] FWCA 8403

FAIR WORK COMMISSION

DECISION

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

Keydane Pty Ltd
(AG2013/10924)

KEYDANE PTY LTD ENTERPRISE BARGAINING AGREEMENT 2013

Tourism industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 OCTOBER 2013

Application for approval of the Keydane Pty Ltd Enterprise Bargaining Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Keydane 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 Keydane Pty Ltd Enterprise Bargaining Agreement 2013 (the ‘Agreement’). The Agreement is to cover 16 employees who are engaged in the applicant’s business providing guided zip-line tours of the canopies of the Daintree rainforest in North Queensland.

[2] The employees were last notified of their representational rights on 8 August 2013, and voting for the Agreement’s approval took place between 20 September and 3 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 15 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Walshaw, Managing Director, identified the Amusement, Events and Recreation Award 2010 [MA000080] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Walshawsaid that the Agreement does provide some terms and conditions that are less beneficial than those under the Modern Award, in that penalty rates for weekends and a number of allowances have been removed. However, these have been taken into account in higher, ‘loaded’ rates of pay. The Agreement also provides for bonus payments when conducting tours for full groups. Rates of pay are to be increased by 2.5% on approval, 2.5% on 30 August 2014 and 2.5% on 30 August 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 22 October 2013, Ms P Kitto of HR Dynamics appeared with Ms S Walshaw for the applicant. Ms Kitto 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. She explained that the employer had undertaken an analysis of what employees were paid during peak and off peak periods and had concluded that overall, employees would be paid 6% higher than under the Modern Award. The employer had been operating for ten years and had a consistent seasonal pattern of business.

[5] Having heard the applicant’s 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 Keydane Pty Ltd Enterprise Bargaining Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 29 October 2013 and have a nominal expiry date of 30 August 2016.

DEPUTY PRESIDENT

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