Maitland City Bowls, Sports and Recreation Club

[2016] FWCA 7794

[2016] FWCA 7794

FAIR WORK COMMISSION

DECISION

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

Maitland City Bowls, Sports and Recreation Club
(AG2016/6394)

MAITLAND CITY BOWLS SPORTS AND RECREATION CLUB LIMITED ENTERPRISE AGREEMENT 2016-2020

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 27 OCTOBER 2016

Maitland City Bowls, Sports and Recreation Club Limited Enterprise Agreement 2016-2020.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Maitland City Bowls, Sports and Recreation Club Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Maitland City Bowls, Sports and Recreation Club Limited Enterprise Agreement 2016-2020 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 56 employees who are employed at the applicant’s Club in Rutherford, New South Wales.

[2] The employees were last notified of their representational rights on 5 February 2015, and voting for the Agreement’s approval took place between 26 and 30 September 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 17 of the 23 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 October 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Ms I Martin, Secretary Manageridentified the Registered and Licensed Clubs Award 2010 [MA000054] and the Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Although Mr Martin said that the Agreement provides for terms which are more beneficial than the reference instruments, he failed to identify what they were. Notwithstanding this omission, the Agreement provides for higher rates of pay compared with the Award as well as the ability to cash out annual leave. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 15 and 46 respectively, and a disputes resolution procedure at clause 36 provides for conciliation and arbitration by the Commission. However, at the hearing for the application, I identified with the parties that the consultation clause, did not identify consultation in the event of changes to an employee’s regular roster or hours of work (s 205(1)(a)(ii)). The applicant offered to provide an undertaking to amend the consultation clause accordingly. The applicant provided the undertaking to my Chambers on 26 October 2016. 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’.

[4] At a hearing of the application on 25 October 2016, Mr I Martin appeared for the applicant and Mr M Dusevic for the Union. Mr Martin 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 rates of pay are to be increased by 3% on approval of the agreement (which will be back dated to 1 July 2016) and by the Commission’s Annual Minimum Wage Review on 1 July each year thereafter. Mr Dusevic supported the approval of the Agreement and agreed it satisfied the BOOT. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ 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 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Maitland City Bowls, Sports and Recreation Club Limited Enterprise Agreement 2016-2020.Pursuant to s 54 of the Act, the Agreement shall operate from 1 November 2016 and have a nominal expiry date of 25 October 2020.

DEPUTY PRESIDENT

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