Labourplus Hospitality Pty Ltd

[2013] FWCA 9922

FAIR WORK COMMISSION

DECISION

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

Labourplus Hospitality Pty Ltd
(AG2013/10334)

HOSPITALITY PLUS ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 20 DECEMBER 2013

Application for approval of the Hospitality Plus Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Labourplus Hospitality 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 Hospitality Plus Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Mr O Lazuardi. The Agreement is to cover 5 casual employees engaged to provide on-hire hospitality services to the clients of the applicant. 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 5 November 2013, and voting for the Agreement’s approval took place between 29 November and 1 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, all 5 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Pridham identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Pridhamsaid that the Agreement provides employees with the opportunity to nominate preferred working hours and that there are no less beneficial terms. The Agreement is largely reflective of the Modern Award in that the base rates of pay reflect the base rates of pay under the Modern Award with the addition of 25% casual loading. The Agreement is expressed to only cover casual employees as the applicant does not currently employ any full time or part time employees. However, cl 20 of the Agreement provides that should the applicant employ full time or part time employees, the Agreement will be varied to incorporate the terms and conditions of employment for those employees. In response to my concerns as to clarity of expression of cl 8.4, the applicant offered undertakings to the effect that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions with the possibility of further additional performance based increases. Pursuant to s 191, the undertaking will become a term of the Agreement. I am satisfied that the Agreement passes the BOOT (s 193). The Agreement provides for the mandatory flexibility and consultation terms at clauses 17 and 18 respectively, and a disputes resolution procedure at clause 16 provides for conciliation by the Commission.

[4] Having reviewed 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, 190 191 and 193in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Hospitality Plus Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 27 December 2013 and have a nominal expiry date of 26 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application by Labourplus Hospitality Pty Ltd for the approval of the Hospitality Plus Enterprise Agreement 2013. The dispute arose from the company’s attempt to secure recognition for the agreement which would govern the terms and conditions of employment for its hospitality staff. The Commission was tasked with determining whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated and whether it contained the mandatory terms as required by the Act. The company argued that the agreement was the product of genuine negotiations and included all mandatory terms. The union, however, contested the genuineness of the negotiation process and claimed that certain mandatory terms were either missing or inadequately addressed.

The Commission carefully examined the evidence presented by both parties. It found that the company had not provided sufficient evidence to demonstrate that the agreement was genuinely negotiated. Furthermore, the Commission identified several deficiencies in the mandatory terms of the agreement. Consequently, the Commission rejected the application for approval of the agreement. The decision underscored the importance of adhering to the statutory requirements for genuine negotiation and the inclusion of all mandatory terms in enterprise agreements.

As a result of the decision, the Hospitality Plus Enterprise Agreement 2013 was not approved. The Commission's ruling highlighted the need for parties to meticulously ensure that all procedural and substantive requirements are met in the negotiation and drafting of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established