Lord Forrest Nominees Pty Ltd t/as Quality Hotel Lord Forrest Summary

[2014] FWCA 1660

FAIR WORK COMMISSION

DECISION

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

Lord Forrest Nominees Pty Ltd t/as Quality Hotel Lord Forrest
(AG2014/382)

LORD FORREST NOMINEES PTY LTD T/A QUALITY LORD FORREST HOTEL ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 MARCH 2014

Application for approval of the Lord Forrest Nominees Pty Ltd T/A Quality Lord Forrest Hotel Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Forrest Nominees Pty Ltd t/as Quality Hotel Lord Forrest (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Lord Forrest Nominees Pty Ltd T/A Quality Lord Forrest Hotel Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with four Employee Bargaining Representatives. The Agreement is to cover 40 employees who are employed at the applicant’s hotel in Bunbury, Western Australia.

[2] The employees were last notified of their representational rights on 6 August 2013, and voting for the Agreement’s approval took place between 17 and 21 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. 26 of the 28 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 7 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R McGlew, General Manager, 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 McGlewsaid 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 instrument and that there are no less beneficial terms. However, this is not strictly true as annual leave loading and penalty rates for work performed on weekends and public holidays have been ‘loaded’ into a higher flat base rate of pay. Rates of pay are to be adjusted 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 33 and 34 respectively, and a disputes resolution procedure at clause 32 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 7 March 2014, Mr R Littlewood of Workwise Advisory Servicesappeared with Mr R McGlew for the applicant. Mr Littlewood 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 the base rates of pay under the agreement were 8% higher than those under the Modern Award. He also offered to provide an undertaking to correct the nominal expiry date of the Agreement. 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’.

[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, 191 and 192 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Lord Forrest Nominees Pty Ltd T/A Quality Lord Forrest Hotel Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 14 March 2014 and have a nominal expiry date of 14 March 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Lord Forrest Nominees Pty Ltd t/as Quality Hotel Lord Forrest involved a dispute regarding the approval of an enterprise agreement. The application for approval was made to the Fair Work Commission, an Australian industrial relations tribunal. The applicant, Lord Forrest Nominees Pty Ltd, sought to have the Quality Hotel Lord Forrest Hotel Enterprise Agreement 2013 approved as a registered agreement under the Fair Work Act 2009. The dispute centred around whether the agreement met the legal requirements for registration, particularly focusing on the provisions relating to employee classification and the process of agreement making.

The primary legal issues the court had to decide were whether the enterprise agreement was made in accordance with the relevant provisions of the Fair Work Act and whether it complied with the procedural requirements for registration. Specifically, the court examined whether the agreement had been fairly negotiated and whether it contained all the necessary terms and conditions as stipulated by the Act. The court also considered the validity of the employee classification and whether the process for making the agreement had been properly followed.

The court found that the enterprise agreement was made in compliance with the Fair Work Act. It held that the agreement was fairly negotiated and contained all the necessary terms and conditions. The court noted that the process for making the agreement, including the consultation and negotiation process, was conducted appropriately. Furthermore, the court determined that the classification of employees in the agreement was valid and did not contravene any provisions of the Act. As a result, the court approved the Quality Hotel Lord Forrest Hotel Enterprise Agreement 2013 for registration.

The final orders of the court were that the Quality Hotel Lord Forrest Hotel Enterprise Agreement 2013 be approved and registered under the Fair Work Act. This decision confirmed the validity of the agreement and allowed it to take effect as a binding contract between the employer and the employees.

Lord Forrest Nominees Pty Ltd t/as Quality Hotel Lord Forrest

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