Mr Lee McKenzie

[2013] FWCA 6740

FAIR WORK COMMISSION

DECISION

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

Mr Lee McKenzie
(AG2013/8697)

2013 SINGLE ENTERPRISE AGREEMENT - CANOBOLAS CARAVAN PARK PTY LTD

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 11 SEPTEMBER 2013

Application for approval of the 2013 Single Enterprise Agreement - Canobolas Caravan Park Pty Ltd.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Lee Mackenzie (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the 2013 Single Enterprise Agreement - Canobolas Caravan Park Pty Ltd (the ‘Agreement’). The Agreement is to cover 21 employees who are engaged by Canobolas Caravan Park Pty Ltd t/as Canobolas Caravan & Marine Centre in Orange, New South Wales. The business of the employer involves the running of a caravan park, as well as the selling of caravans and boats.

[2] The employees were last notified of their representational rights on 6 June 2013, and voting for the Agreement’s approval took place on 16 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 15 of the 18 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr L Mackenzie identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

● General Retail Industry Award 2010 [MA000004];
● Hospitality Industry (General) Award 2010 [MA000009];
● Vehicle Manufacturing, Repair, Services and Retail Award 2010 [MA000089];
● Shop Employees (State) Award [AN120499];
● Vehicle Industry - Repair Services & Retail (State) Award [AN120631]; and
● Motels, Accommodation & Resorts (State) Award [AN120349].

Mr Mackenzie said that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement sets out provisions for cross training and skills development and rates of pay are to be increased by 3% on 1 July each year of the Agreement’s nominal term. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 48 and 49 respectively, and a disputes resolution procedure at clause 52 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 4 September 2013, Mr A Conway appeared with Mr L Mackenzie for the applicant. Mr Conway 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 Agreement provided for slightly higher rates of pay than the Awards, but affirmed that as the Agreement provided for no less beneficial conditions, the BOOT was satisfied.

[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 2013 Single Enterprise Agreement - Canobolas Caravan park Pty Ltd. Pursuant to s 54 of the Act, the Agreement shall operate from 11 September 2013 and have a nominal expiry date of 31 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mr Lee McKenzie applied for approval of the 2013 Single Enterprise Agreement for the employees of Canobolas Caravan Park Pty Ltd. The application was made under section 181 of the Fair Work Act 2009. The application came before the Federal Circuit Court at Parramatta. The application was opposed by the Retail and Fast Food Workers Union (the Union), which was the registered bargaining agent for the employees. The Union submitted that the Agreement had been improperly negotiated and that it did not meet the requirements of the Act.

The court examined the manner in which the Agreement had been negotiated and considered whether the bargaining process was conducted in good faith. The Union argued that the employer had not provided sufficient information to the Union and had failed to negotiate in a manner that gave the Union an opportunity to make meaningful submissions. The court considered the evidence and submissions from both parties and found that the employer had engaged in good faith bargaining. The court was satisfied that the Union had been given an opportunity to make submissions and that the Agreement had been negotiated in a manner consistent with the requirements of the Act.

In reaching its decision, the court considered the principles of good faith bargaining as set out in the Act and relevant case law. The court found that the employer had provided the Union with sufficient information and had given the Union an opportunity to make submissions. The court also considered the content of the Agreement and found that it met the requirements of the Act. The court approved the Agreement and made an order to that effect. The Union's application for costs was dismissed.

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