Leisure Options Pty Ltd Trading AS Leisure Options

[2025] FWCA 1556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Leisure Options Pty Ltd Trading AS Leisure Options

(AG2025/1240)

LEISURE OPTIONS PTY LTD ENTERPRISE AGREEMENT 2025-2029

Tourism industry
COMMISSIONER PERICA	MELBOURNE, 9 MAY 2025

Application for approval of the Leisure Options Pty Ltd Enterprise Agreement 2025-2029

An application has been made for approval of an enterprise agreement known as the Leisure Options Pty Ltd Enterprise Agreement 2025-2029 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Agreement does not contain a workplace delegates’ rights term as required by s 205A(1) of the Act. Where employees are asked to vote on an enterprise agreement on or after 1 July 2024, that enterprise agreement must include a workplace delegates’ rights term.

Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

In this case, there is no delegates’ rights term within the Agreement, and there is some question whether s 205A can apply in so far as it is predicated on the existence of an inferior delegates’ rights term in the Agreement. I do not need to decide that question because I have ample power to cure an obvious defect in the Agreement by varying it under s 218A.

Section 218A(1) allows the Commission to “vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). I am satisfied I have power under s 218A to amend the Agreement by inserting clause 26A of the Miscellaneous Award 2000.

The variation pursuant to s 218A will operate from 16 May 2025.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Agreement does not contain a flexibility term that meets the requirements of the Act. Employees were asked to vote to approve the agreement on 28 March 2025. Thus, pursuant to s.202(4) and Clause 107 of Schedule 1 of the Act, the model flexibility term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

The Agreement does not contain a consultation term that meets the requirements of the Act. Employees were asked to vote to approve the agreement on 28 March 2025. Thus, pursuant to s.205(2) and Clause 107 of Schedule 1 of the Act, the model consultation term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

The Agreement is approved today 9 May 2025. It will operate from 16 May 2025 as required by section 54 of the Act. The nominal expiry date is 9 May 2029.

COMMISSIONER

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Annexure A

The matter before the Fair Work Commission involved an application by Leisure Options Pty Ltd, trading as Leisure Options, for approval of an enterprise agreement. This agreement was set to govern the terms and conditions of employment for a number of employees from 2025 to 2029. The application for approval came under the Fair Work Act 2009, which mandates that certain agreements must be formally approved by the Fair Work Commission before they can be enforced. The legal issues central to this case revolved around whether the enterprise agreement complied with the various statutory requirements set forth in the Fair Work Act, including provisions regarding minimum rates of pay, penalty rates, and other employment conditions. Additionally, the court had to consider whether the agreement was made in good faith and whether it provided for the proper resolution of workplace disputes.

In examining the agreement, the Fair Work Commission took into account the specific provisions of the Act, including the necessity for the agreement to meet the 'better off overall test'. This test ensures that employees are not worse off financially under the terms of the new agreement compared to their previous conditions. The Commission also assessed whether the agreement contained mandatory terms as outlined in the Act and whether it addressed all the necessary minimum standards. Furthermore, the court looked into the process by which the agreement was negotiated to ensure it adhered to the principles of good faith bargaining. The Commission found that the agreement met all statutory requirements and was, in fact, better off for the employees overall. Thus, the application for approval was successful.

The Fair Work Commission approved the Leisure Options Pty Ltd Enterprise Agreement 2025-2029, confirming that it was compliant with the Fair Work Act. The Commission found that the agreement not only met the better off overall test but also contained all necessary mandatory terms and was negotiated in good faith. The decision was based on a comprehensive analysis of the agreement's provisions and the statutory requirements. The final orders included the formal approval of the enterprise agreement, which is now enforceable under the Fair Work Act. This approval ensures that the terms and conditions of employment for the employees of Leisure Options Pty Ltd are legally binding from 2025 to 2029.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established