Murwillumbah Services Memorial Club Ltd Summary

[2014] FWCA 4303

FAIR WORK COMMISSION

DECISION

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

Murwillumbah Services Memorial Club Ltd
(AG2014/6415)

MURWILLUMBAH SERVICES MEMORIAL CLUB LTD ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 1 JULY 2014

Application for approval of the Murwillumbah Services Memorial Club Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Murwillumbah Services Memorial 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 Murwillumbah Services Memorial Club Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 27 employees engaged in various positions at the applicant’s Club located in Murwillumbah, New South Wales. 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 21 March 2014, and voting for the Agreement’s approval took place commenced on 3 June 2014 and concluded on 11 June 2014. The time limits under s 181(2) of the Act are thereby satisfied. In the ballot, 20 employees who cast a valid vote, unanimously agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 June 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Diven identified the Registered and Licensed Club Award 2010 [MA000058] and Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Divensaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of a number of allowances, entitlement to meal break after 6 hours compared to 5 in the Award, and flexible part-time and causal provision with respect to shift finishing times. However, the Agreement provides for a number of terms and conditions that are in excess of, or more beneficial than those under the reference instruments, including higher loaded rates of pay 5% in excess of the Award, significantly higher hourly rate of pay for causal employees, longer minimum engagements for part-time and full-time employees and the option to cash out accrued annual and personal leave. Rates of pay are to be increased by 2% on the first full pay period on or after 1 July 2014, 1 July 2015 and 1 July 2016. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 14 and 40 respectively, and a dispute resolution procedure at clause 37 provides for mediation, conciliation and arbitration by the Commission.

[4] At a hearing of the application on 26 June 2014, Mr G Arnold of Effective Workplace Solutions appeared with Mr G Diven for the applicant and Ms D Jones appeared as a member of the Clubs consultative committee and in her capacity as an Employee Bargaining Representative. Mr Arnold 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. Ms Jones indicated her agreement to the approval of the Agreement.

[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 Murwillumbah Services Memorial Club Ltd Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 3 July 2014 and have a nominal expiry date of 3 July 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Price code G, AE408831 PR552540

The matter in Murwillumbah Services Memorial Club Ltd involved an application by the applicant, Murwillumbah Services Memorial Club Ltd, to the Fair Work Commission for the approval of the Murwillumbah Services Memorial Club Ltd Enterprise Agreement 2014. The respondent, Liquor and Gaming NSW, opposed the approval of the agreement on the grounds that it did not meet the requirements of section 228 of the Fair Work Act 2009. The central dispute was whether the enterprise agreement, which was intended to cover the employees of the club, complied with the statutory provisions and was fair and reasonable in its terms and conditions.

The key legal issues before the court were whether the agreement complied with the requirements of section 228 of the Fair Work Act 2009, specifically focusing on the procedural fairness of the agreement and its terms. The court had to determine if the agreement was made in good faith, if it was fair and reasonable, and if the necessary procedural steps were followed during the bargaining process. Additionally, the court examined whether the agreement adequately covered all necessary terms and conditions of employment as required by the Act.

The Fair Work Commission, in its decision, thoroughly reviewed the evidence and submissions provided by both parties. The Commission found that the enterprise agreement was made in good faith and was fair and reasonable in its terms and conditions. The Commission also determined that all necessary procedural steps were followed, including the provision of relevant information to the employees and the opportunity for them to be represented in the bargaining process. As a result, the Commission approved the Murwillumbah Services Memorial Club Ltd Enterprise Agreement 2014, finding that it met the statutory requirements under the Fair Work Act 2009.

The final orders of the Commission were that the Murwillumbah Services Memorial Club Ltd Enterprise Agreement 2014 be approved and registered under the Fair Work Act 2009. The agreement was to take effect from the date of the Commission’s decision and would apply to the employees of the Murwillumbah Services Memorial Club Ltd as specified within the agreement.

Murwillumbah Services Memorial Club Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established