Kurri Kurri Bowling Club Limited

[2015] FWCA 5482

[2015] FWCA 5482

FAIR WORK COMMISSION

DECISION

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

Kurri Kurri Bowling Club Limited
(AG2015/3965)

KURRI KURRI BOWLING CLUB'S STAFF ENTERPRISE AGREEMENT 2015

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 13 AUGUST 2015

Application for approval of the Kurri Kurri Bowling Club’s Staff Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Kurri Kurri Bowling Club Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Kurri Kurri Bowling Club’s Staff Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 50 employees who are employed at the applicant’s Club in Kurri Kurri, New South Wales.

[2] The employees were last notified of their representational rights on 10 June 2015, and voting for the Agreement’s approval took place on 1 July 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 29 of the 31 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 15 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr V Dobing, Secretary Manager identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Dobingstated that the Agreement does not provide for any terms and conditions that are more or less beneficial than those under the reference instruments. However, on closer examination, it is clear that this is misconceived. Mr Dobing explained that he was attempting to convey that the Agreement was in like terms to a previous enterprise agreement covering the applicant. Nevertheless, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 38 respectively, and a disputes resolution procedure at clause 39 erroneously refers to Fair Work Australia which I take as providing for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 22 July 2015, Mr V Dobing appeared for the applicant. Mr Dobing 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 adjusted in accordance with the Commission’s Minimum Wage Review decisions and that the rates in the enterprise agreement took into account the 2.5% minimum wage increase effective from 1 July 2015. In response to correspondence to my chambers from the Australian Workers’ Union (the ‘Union’), Mr Dobing subsequently provided undertakings amending penalty rates and annualised salaries for horticultural employees and the definition of ‘Greens Keeper’ in cl 3.1. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. The Union subsequently corresponded with my Chambers to indicate that the undertaking satisfied its concerns, but emphasised that the Union was not a bargaining representative for the Agreement.

[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, 188, 190, and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Kurri Kurri Bowling Club’s Staff Enterprise Agreement 2015. Pursuant to s 54 of the Act, the Agreement shall operate from 29 July 2015 and have a nominal expiry date of 28 July 2019.

DEPUTY PRESIDENT

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