Milton Ulladulla Ex-Servos Club Ltd

[2017] FWCA 3843

[2017] FWCA 3843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Milton Ulladulla Ex-Servos Club Ltd
(AG2017/1824)

MILTON ULLADULLA EX-SERVOS CLUB ENTERPRISE AGREEMENT 2017

Licensed and registered clubs
COMMISSIONER LEE	MELBOURNE, 21 JULY 2017

Application for approval of the Milton Ulladulla Ex-Servos Club Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Milton Ulladulla Ex-Servos Club Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Milton Ulladulla Ex-Servos Club Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The matter was listed for Hearing, by Telephone before me today to provide the parties with the opportunity to make submissions about my concerns in respect to Clause 37.2.5 of the Agreement. Submissions were made by the Applicant and United Voice during the hearing.

[5] Clause 37.2.5 of the Agreement provides as follows:

“Notwithstanding the penalty rates prescribed in sub clause 37.1, the Club reserves the right to apply the equivalent penalty rates in the award if it was to change.”

[6] Clause 37.1 sets out a table of penalty rates that apply in the Agreement. Any application of Clause 37.2.5 would in my view have the effect of varying the rates in Clause 37.1 in a manner which would be inconsistent with the Act and unenforceable. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement, however I note the parties are on notice about my view on that point.

[7] United Voice being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 July 2017. The nominal expiry date of the Agreement is 28 July 2020.

COMMISSIONER

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ANNEXURE A