Mount Pritchard & District Community Club Ltd

[2013] FWCA 3645

[2013] FWCA 3645

FAIR WORK COMMISSION

DECISION

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

Mount Pritchard & District Community Club Ltd
(AG2013/1252)

MOUNTIES GROUP ADMINISTRATION/PROFESSIONAL AND MAINTENANCE TRADES STAFF ENTERPRISE AGREEMENT 2013

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 11 JUNE 2013

Application for approval of the Mounties Group Administration/Professional and Maintenance Trades 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 Administration/Professional and Maintenance Trades Staff Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with United Voice, Liquor and Hospitality Division - NSW Branch (the ‘Union’). The Agreement is to cover 70 employees who are employed in Administration, Professional, Maintenance and Horticultural positions at the applicant’s Club in Mount Pritchard, New South Wales. I note that the applicant regards Frontline Staff and Fitness Centre staff as operationally distinct and that those staff are covered by different 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 30 January 2013, and voting for the Agreement’s approval took place on 8 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a voting process that was notified to employees a week prior to it taking place, with a reminder email sent on the day of the vote, 41 of the 48 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 May 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Martin, Employment Relations Manager identified the Registered and Licensed Clubs Award 2010 [MA000058], the Club Employees (State) Award [AN120136], the Club Managers’ (State) Award 2006 [AN120138] 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 Martinsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the lack of provision for penalty rates for weekends and unsociable hours, except non-administrative staff covered by the Agreement. The Agreement also does not provide for overtime. It was said that significantly higher rates of pay compensate for the loss of these entitlements. The Agreement also provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher rates of pay, six weeks paid parental leave for employees with at least twelve months service, a minimum engagement of three hours for casual employees, the provision of an allowance of $76 for certain maintenance employees if they attend the Club while on call back duty as well as an on call allowance of $56, and an additional public holiday. It was also said that another benefit was the ability of full time and part time employees to cash out personal and carers’ leave. Accrued personal and carers’ leave is also paid out on the cessation of employment, unless terminated for serious misconduct. 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 term

[4] At a hearing of the application on 6 June 2013, Ms H Carayannis, of the Registered Clubs Association of NSW t/as ClubsNSWappeared for the applicant and Mr D Holder for the Union. 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 Club had decided to continue its practice of having its employees covered by three enterprise agreements reflecting the different groups of employees engaged by the Club. However, all employees received similar wage increase and condition outcomes.

[5] The Union had filed a Declaration in relation to the application (Form 18) giving notice that it agreed with the substance of the employer’s declaration and 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 submitted that it could not support the approval of the Agreement due to the dispute resolution procedure at cl 15 providing for arbitration by the Commission only where the parties consent. Mr Holder said that it was the policy of the Union to oppose such dispute resolution procedures in enterprise agreements. However, the Union did not otherwise oppose the approval of the Agreement. Ms Carayannis submitted that the dispute resolution procedure was rarely used and that the Club had a history of resolving disputes quickly and efficiently. She also noted that cl 15 provided for the engagement of an independent mediator at the cost of the Club, and that the existing enterprise agreement did not provide for arbitration at all. While I noted my concern that this could mean that disputes may not be ultimately and finally resolved, the omission of binding arbitration in a disputes resolution clause in an Agreement, is not an impediment to the Agreement’s approval under the Act.

[6] 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 Mounties Group Administration/Professional and Maintenance Trades Staff Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 13 June 2013 and have a nominal expiry date of 13 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE401670  PR537653>