Leaville Holdings Pty Ltd t/a Willare Bridge Roadhouse

[2017] FWCA 1015

[2017] FWCA 1015

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Leaville Holdings Pty Ltd t/a Willare Bridge Roadhouse
(AG2016/7971)

WILLARE BRIDGE ROADHOUSE ENTERPRISE AGREEMENT 2017

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 27 FEBRUARY 2017

Application for approval of the Willare Bridge Roadhouse Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Leaville Holdings Pty Ltd t/a Willare Bridge Roadhouse (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Willare Bridge Roadhouse Enterprise Agreement 2017 (the ‘Agreement’). The Agreement is to cover all employees who are engaged at the applicant’s premises in Willare, Western Australia. 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 1 November 2016, and voting for the Agreement’s approval took place on 8 December 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, all nine of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 December 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms E Struckel identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Struckelsaid that the Agreement provides more beneficial terms than the reference instrument, including a higher rate of pay of between 8.73% to 39.27% and all employees are provided with a single room for accommodation as well as three meals per day, given the remoteness of the location. Ms Struckel said that the Agreement provides for some terms which are less beneficial, including less beneficial penalty rates for managerial employees, no penalty rates for ‘yard staff’ and lower overtime rates. At a hearing of the application on 20 January 2017, Mr B Taylor, solicitor appeared for the applicant (I note the matter was initially listed for hearing on 13 January 2017, but was delayed at the request of the applicant due to illness). The day before the hearing, on 19 January, Mr Taylor emailed Chambers a wage comparison for Housekeepers. During the hearing, Mr Taylor advised that he would also provide similar comparisons for all categories of employees under the Agreement. This was provided on 10 February 2017. The comparisons illustrate how, in calculating whether employees are ‘better off’ under the Agreement, it is important to factor into the calculation a deduction of $195.83 per week, for meals and accommodation (as provided for in the Award). If this is not factored in, employees are not ‘better off’ when compared with the reference instrument. However, when they are factored in, all employees are shows to be financially ‘better off’ than under the reference instrument. I sought further detail from the applicant around the nature of this benefit. In a letter received in Chambers on 22 February 2017, Ms Struckel advised that the amount deducted is pursuant to cl 39.1 of the Award (which specifies $195.83) and would continue for all current and prospective employees. I also note that cl 34.1 of the Agreement specifies that all employees are entitled to this benefit. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. In these circumstances, I am satisfied that the Agreement passes the BOOT.

[4] During the hearing, I raised with Mr Taylor that an outdated flexibility clause had appeared to be used in the Agreement. Mr Taylor offered to provide an undertaking in this regard so that the model flexibility term would be taken to be a term of the Agreement, rather than clause 16. This undertaking was provided to Chambers on 10 February 2017. 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’. I also raised with Mr Taylor that the Agreement did not contain the full names and addresses of each signatory to the Agreement. Mr Taylor provided a copy of the Agreement with this information set out (regulation 3.06A(2)(b)(i) of the Fair Work Regulations 2009). The Agreement provides for the mandatory consultation term at clause 27, and a disputes resolution procedure at clause 33 provides for conciliation and consent arbitration by the Commission. Mr Taylor submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission.

[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 ss180, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Willare Bridge Roadhouse Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 3 March 2017 and have a nominal expiry date of 3 March 2021.

DEPUTY PRESIDENT

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