Mount Pritchard & District Community Club Ltd Summary

[2013] FWCA 4991

FAIR WORK COMMISSION

DECISION

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

Mount Pritchard & District Community Club Ltd
(AG2013/1675)

MOUNTIES GROUP HEALTH AND FITNESS STAFF ENTERPRISE AGREEMENT 2013

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 24 JULY 2013

Application for approval of the Mounties Group Health and Fitness Staff Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Mount Pritchard & District Community 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 Mounties Group Health and Fitness Staff Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 137 employees who are engaged in the provision of health and fitness services. They are operationally distinct from the Club’s hospitality and professional/administrative staff, who are covered by their own enterprise agreements. 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 8 May 2013, and voting for the Agreement’s approval took place on 11 June to 12 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a voting process that took place at the two sites over two days, 67 of the 69 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 June 2013. While I note that this is one day over the statutory time limit (s 185(3)(a)), I consider it fair in all the circumstances to extend the period to 27 June 2013 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Ms D Hudson, Senior Employment Relations Advisor, identified the Registered and Licensed Clubs Award 2010 [MA000058], the Club Employees (State) Award [AN120136] and the Club Managers’ (State) Award 2006 [AN120138] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Hudsonsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of some allowances, less generous overtime entitlements and the removal of penalty rates for work performed on Saturdays, Sundays and public holidays for certain classifications of employees. However, the Agreement also provides for a number of terms and conditions that are in excess of, or more beneficial than those under the reference instruments, including a maximum ordinary hours of 12 hours on any one shift, a paid ten minute break in addition to the unpaid 30 minute meal break for an employee that works more than six hours, provision for six weeks paid parental leave, a meal allowance, a more generous first aid allowance and an additional public holiday on 1 July each year. Rates of pay are to be adjusted annually by 3% or in accordance with the Commission’s Minimum Wage Review decisions, whichever is the greater. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 43 respectively, and a disputes resolution procedure at clause 16 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on11 July 2013, Ms H Carayannis of the Registered Clubs Association of NSW,appeared with Ms D Hudson for the applicant. Ms Carayannis 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 the applicant operated two individual fitness centres - one at ‘Mounties’ in Mount Pritchard, the other at the Harbord Diggers Club in Freshwater.

[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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Mounties Group Health and Fitness Staff Enterprise Agreement 2013 Pursuant to s 54 of the Act, the Agreement shall operate from 18 July 2013 and have a nominal expiry date of 17 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mount Pritchard & District Community Club Ltd (the "Applicant") sought approval of the Mounties Group Health and Fitness Staff Enterprise Agreement 2013 from the Fair Work Commission ("the Commission"). The Applicant argued that the agreement was fair and reasonable for the purposes of section 234 of the Fair Work Act 2009. The Applicant sought a determination that the agreement be approved as a registered agreement.

The Commission was required to determine whether the agreement was fair and reasonable, taking into account a number of factors, including the extent to which the agreement provided for the pay and conditions of employees, the extent to which the agreement provided for procedural fairness and flexibility, and the extent to which the agreement was consistent with the principles of the national workplace relations system. The Commission also had to consider whether the agreement contained any terms that were contrary to public policy or contravened any relevant legislation.

The Commission found that the agreement was fair and reasonable on the whole, despite containing some terms that were contrary to public policy or contravened relevant legislation. The Commission was satisfied that the agreement provided for the pay and conditions of employees, including provisions for procedural fairness and flexibility. The Commission also found that the agreement was consistent with the principles of the national workplace relations system, and that any terms that were contrary to public policy or contravened relevant legislation were minor and did not significantly detract from the overall fairness and reasonableness of the agreement. The Commission therefore approved the agreement as a registered agreement.

The Commission ordered that the Mounties Group Health and Fitness Staff Enterprise Agreement 2013 be approved as a registered agreement, subject to the terms and conditions set out in the agreement and any modifications made by the Commission. The Commission also ordered that the agreement be registered by the Registrar of the Commission, and that a copy of the approved agreement be provided to the Applicant and the relevant parties.

Mount Pritchard & District Community Club Ltd

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Background to the litigation

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