Ladehai Pty Ltd ATF Kessells Road Unit Trust t/as BIG4 North Star Holiday Resort & Caravan Park

[2014] FWCA 1277

[2014] FWCA 1277

FAIR WORK COMMISSION

DECISION

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

Ladehai Pty Ltd ATF Kessells Road Unit Trust t/as BIG4 North Star Holiday Resort & Caravan Park
(AG2014/233)

LADEHAI PTY LIMITED ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 21 FEBRUARY 2014

Application for approval of the Ladehai Pty Limited Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ladehai Pty Ltd ATF Kessells Road Unit Trust t/as BIG4 North Star Holiday Resort & Caravan Park (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Ladehai Pty Limited Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 61 employees who are employed at the applicant’s resort/caravan park in Hastings Point, New South Wales.

[2] The employees were last notified of their representational rights on 21 November 2013, and voting for the Agreement’s approval took place between 24 and 26 January 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 29 of the 37 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 6 February 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr I Beadel, Owner, identified the Hospitality Industry (General) Award 2010 [MA000009] and the Motels, Accommodation & Resorts (State) Award [AN120349] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Beadelsaid 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 instruments and that there are no less beneficial terms. However, this is not strictly true, as the Agreement provides for higher ‘loaded’ base rates of pay which take into account annual leave loading, laundry allowance and penalty rates for work performed in the evening and on Saturdays. The Agreement also provides for a higher meal allowance. Rates of pay are to be increased 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 7 and 6 respectively, and a disputes resolution procedure at clause 5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 19 February 2014, Ms H Ellis, Solicitor,appeared for the applicant. Ms Ellis 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 applicant had a history of entering into enterprise agreements and collective agreements with its employees. She explained that the base rates of pay were approximately 12.1% higher for permanent employees and 8.3% higher for casuals than those under the Modern Award. These rates of pay had been calculated by taking into account the relevant ‘loaded’ penalty rates and allowances and the applicant’s regular roster patterns. The Agreement was also filed with undertakings relating to the consultation clause and the overnight stay allowance. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’.

[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 193, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Ladehai Pty Limited Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 26 February 2014 and have a nominal expiry date of 25 February 2018.

DEPUTY PRESIDENT

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