Mt Pritchard and District Community Club Limited t/a Mounties

[2017] FWCA 492

[2017] FWCA 492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Mt Pritchard and District Community Club Limited t/a Mounties
(AG2016/8056)

MOUNTIES GROUP WESTERN SITE COMMUNITY CLUBS ENTERPRISE AGREEMENT 2017

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 24 JANUARY 2017

Application for approval of the Mounties Group Western Site Community Clubs Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Mt Pritchard and District Community Club Limited t/a Mounties (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 Western Site Community Clubs Enterprise Agreement 2017 (the ‘Agreement’). The Agreement was negotiated with United Voice – Liquor and Hospitality Division (the ‘Union’) and is to cover 71 employees who are engaged at the applicant’s premises in St John’s Park, Cabramatta, Fairfield and Lansvale, NSW. 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 March 2016, and voting for the Agreement’s approval took place on 12 and 13 December 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 41 of the 51 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 December 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Martin, Group Employment Relations Manager identified Registered and Licensed Clubs Award 2010 [MA000058], Club Managers (State) Award [AN120138], Bowling and Golf Clubs Employees (State) Award [AN120079] and the Club Employees (State) Award [AN120138] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Martin said that the Agreement provides for a significant number of more beneficial terms than the reference instruments, including a wider definition of shift worker for the purpose of an additional week of annual leave, more generous junior rates of pay, more beneficial allowances, higher rates of pay (between 0.38-8.73%) as well as a number of other benefits. Ms Martin also said the Agreement provides for some terms which are less beneficial than the reference instruments, including no meals being provided to employees when required to work two or more hours of overtime (which the applicant said would be very rare at any of their premises) and the first aid allowance not being provided during periods of leave. Rates of pay are to be increased by 3% or the Commission’s Minimum Wage Decision, whichever the greater on 1 July 2017 and subsequently by 2.5% or the Commission’s Minimum Wage Decision, whichever the greater on 1 July 2018 and 1 July 2019. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 52 respectively, and a disputes resolution procedure at clause 12 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 17 January 2016, Mr C Langton of the Registered Clubs Association of NSW appeared for the applicant with Ms A Martin and Mr M Dusevic for the Union. Mr Langton 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. I drew Mr Langton’s attention to clause 33 – Compassionate Leave and how it could be interpreted as less beneficial than the NES; that is, employees are entitled to 2 days of compassionate leave ‘per occasion’. Mr Langton offered to provide an undertaking to remedy this omission. Mr Langton also requested to alter the title of the Agreement from Mounties Group Western Site Community Clubs Enterprise Agreement 2016 to Mounties Group Western Site Community Clubs Enterprise Agreement 2017. Pursuant to s 191(1) of the Act, the undertakings are taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and 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.

[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 ss180, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Mounties Group Western Site Community Clubs Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 1 February 2017 and have a nominal expiry date of 1 February 2020.

DEPUTY PRESIDENT

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