Napoleon Services Pty Ltd T/A Niramaya Villas and Spas

[2014] FWCA 4302

[2014] FWCA 4302

FAIR WORK COMMISSION

DECISION

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

Napoleon Services Pty Ltd T/A Niramaya Villas and Spas
(AG2014/6349)

NIRAMAYA VILLAS & SPA ENTERPRISE BARGAINING AGREEMENT 2014.

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 JULY 2014

Application for approval of the Niramaya Villas & Spa Enterprise Bargaining Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Napoleon Services Pty Ltd trading as Niramaya Villas and Spas (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Niramaya Villas & Spa Enterprise Bargaining Agreement 2014 (the ‘Agreement’). The Agreement is to cover 15 employees, other than security staff, drive master and resort managers, who are engaged in various positions at the applicant’s resort, known as Niramaya Villas & Spas in Port Douglas, Queensland. 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 14 April 2014, and voting for the Agreement’s approval took place on 28 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 11 of 15 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 June 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Z Sarnecki, Manager of Niramaya Villas and Spas identified the Hair and Beauty Industry Award 2010 [MA000005] and Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Sarneckisaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on Saturdays, Sundays and public holidays. 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 and the ability to work voluntary additional hours. Rates of pay are to be increased by 2.5% on 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 7.1 and 7.3 respectively, and a dispute resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 26 June 2014, Ms P Kitto of HR Dynamics appeared with Mr Z Sarnecki for the applicant. Ms Kitto 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.

[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 Niramaya Villas & Spa Enterprise Bargaining Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 3 July 2014 and have a nominal expiry date of 30 May 2017.

DEPUTY PRESIDENT

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