Mingara Recreation Club Ltd

[2013] FWCA 9111

[2013] FWCA 9111

The attached document replaces the document previously issued with the above code on 22 November 2013.

A typographical error in the title of the enterprise agreement has been corrected.

Sean Howe

Associate to Deputy President Sams

Dated 22 November 2013

[2013] FWCA 9111

FAIR WORK COMMISSION

DECISION

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

Mingara Recreation Club Ltd
(AG2013/11393)

MINGARA REGISTERED CLUBS ENTERPRISE AGREEMENT 2013

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 21 NOVEMBER 2013

Application for approval of the Mingara Registered Clubs Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Mingara 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 Mingara Registered Clubs Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and two non-Union Employee Bargaining Representatives. The Agreement is to cover 393 employees who are engaged at one of the applicant’s four Clubs in New South Wales. The Agreement does not cover employees who are covered by an Australian Workplace Agreement or Individual Transitional Employment Arrangements, Management or employees engaged under the Mingara One Enterprise Agreement. 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 11 June 2013, and voting for the Agreement’s approval took place on 26 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot conducted by the Australian Electoral Commission, 119 of the 135 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Pack, Human Resources Manager identified the Registered and Licensed Clubs Award 2010 [MA000058], the Club Employees (State) Award [AN120136] and the Bowling and Golf Clubs Employees (State) Award [AN120079] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Packsaid that the Agreement did provide for some terms and conditions that are less beneficial than those under the reference instruments, including longer periods before employees can take their meal break, a reduction in penalty rates for work performed between 8:00pm and 6:00am and less generous redundancy entitlements. However, the Agreement also provides for a number of terms and conditions that are more beneficial, or in excess of those under the reference instruments, including a ‘secure employment’ clause, a three hour minimum shift for casual employees, and more generous overtime rates on weekends. It was also said that another benefit was the ability to cash out annual leave in particular circumstances. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 38 respectively, and a disputes resolution procedure at clause 39 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 19 November 2013, Ms E Nicolle of the Registered Clubs Association of New South Wales appeared with Ms S Pack and Ms K McKay for the applicant. Ms S Scobie appeared in her capacity as an Employee Bargaining Representative and Mr C Acev for the Union. The Union had filed a Declaration in relation to the application 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. However, the Union did not support the approval of the Agreement, as it did not believe that the pay increases under the Agreement were sufficient. Ms Nicolle 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. She explained that rates of pay are to be increased by 0.85% on approval of the Agreement and adjusted in accordance with the Commission’s Minimum Wage Review decisions thereafter, with the increase due on 1 July 2014 being offset by the 0.85% already paid. Ms Scobie supported the submissions of Ms Nicolle and indicated that she supported the approval of 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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Mingara Registered Clubs Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 26 November 2013 and have a nominal expiry date of 25 November 2017.

DEPUTY PRESIDENT

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