Kimberley Accommodation (East) Pty Ltd And Kimberley Accommodation (West) Pty Ltd T/A Kimberley Accommodation (East) Pty Ltd Trading As Vagg's Wyndham Liquor, Hotel Kununurra And Kimberley Hotel

[2025] FWCA 674

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Kimberley Accommodation (East) Pty Ltd And Kimberley Accommodation (West) Pty Ltd T/A Kimberley Accommodation (East) Pty Ltd Trading As Vagg’s Wyndham Liquor, Hotel Kununurra And Kimberley Hotel

(AG2024/5279)

KIMBERLEY ACCOMMODATION – SINGLE ENTERPRISE AGREEMENT 2024

Hospitality industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 20 FEBRUARY 2025

Application for approval of the Kimberley Accommodation – Single Enterprise Agreement 2024.

An application has been made for approval of an enterprise agreement known as the Kimberley Accommodation – Single Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Kimberley Accommodation (East) Pty Ltd and Kimberley Accommodation (West) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 7 November 2023 and the Agreement was made on 8 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.
The Applicant has provided written undertakings (Annexure A). I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2025. The nominal expiry date of the Agreement is 1 March 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved the applicants, Kimberley Accommodation (East) Pty Ltd and Kimberley Accommodation (West) Pty Ltd trading as Kimberley Accommodation, and the respondent, Vagg’s Wyndham Liquor, Hotel Kununurra, and Kimberley Hotel. The dispute centred on the approval of the Kimberley Accommodation – Single Enterprise Agreement 2024. The matter was heard in the Fair Work Commission, with the Commission being tasked with determining whether the agreement should be approved in the circumstances presented.

The legal issues before the Commission were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to consider if the agreement complied with the provisions regarding enterprise agreements and whether it had been made in good faith and without coercion. The Commission also needed to examine if the agreement appropriately covered the employees, included minimum entitlements, and had been certified by the appropriate authority.

In delivering its decision, the Commission assessed the evidence and submissions from both parties. It found that the agreement satisfied the statutory requirements for approval, including meeting the good faith and non-coercion criteria. The Commission confirmed that the agreement appropriately covered the employees, included the necessary minimum entitlements, and had been certified as per the legislative requirements. The Commission concluded that the agreement was fair and reasonable in all the circumstances and thus should be approved. Consequently, the application for approval of the Kimberley Accommodation – Single Enterprise Agreement 2024 was successful.

The final orders of the Commission were that the Kimberley Accommodation – Single Enterprise Agreement 2024 be approved and registered. This decision was made effective from the date of the decision, ensuring that the agreement would govern the employment conditions of the relevant employees as intended.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established