Noosa Venture 1 Pty Ltd T/A Sheraton Noosa Resort & Spa - Re: Sheraton Noosa Resort & Spa Enterprise Agreement 2009 - [2009] FWA 336

[2009] FWA 336

The attached document replaces the document previously issued with the above code on 13 October 2009.

The amended Approval Decision notes the Liquor, Hospitality and Miscellaneous Union is covered by the Sheraton Noosa Resort & Spa Enterprise Agreement 2009.

Caroline O’Connor

Associate to Senior Deputy President Richards

Dated 12 November 2009

[2009] FWA 336

FAIR WORK AUSTRALIA

APPROVAL DECISION

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

Noosa Venture 1 Pty Ltd T/A Sheraton Noosa Resort & Spa
(AG2009/12711)

SHERATON NOOSA RESORT & SPA ENTERPRISE AGREEMENT 2009
(ODN AG2009/12711) [AE871520]

Liquor and accommodation industry
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 13 OCTOBER 2009

Application for approval of the Sheraton Noosa Resort & Spa Enterprise Agreement 2009.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 3 September 2009 by Noosa Venture 1 Pty Ltd for the approval of a single enterprise agreement known as Sheraton Noosa Resort & Spa Enterprise Agreement 2009 (“the Agreement”).

[2] The Agreement was made during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (“the Transitional Act”). Accordingly, when considering whether to approve the Agreement the provisions of Part 2-4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act have been taken into account.

[3] I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act that are relevant to this application for approval have been met, and that such other requirements of the Act have been met.

[4] I have been assisted in this regard by the provision of additional information regarding earnings against the reference instrument for various classifications under the proposed agreement, which is retained on file.

[5] The Agreement covers the Liquor, Hospitality and Miscellaneous Union.

[6] Consequently the Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 October 2009.The nominal expiry date of the Agreement is20 October 2012 as stipulated in clause 5.1 of the Agreement.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Noosa Venture 1 Pty Ltd T/A Sheraton Noosa Resort & Spa - Re...

Details

AGLC: Noosa Venture 1 Pty Ltd T/A Sheraton Noosa Resort & Spa - Re: Sheraton Noosa Resort & Spa Enterprise Agreement 2009 [2009] FWA 336
Case: [2009] FWA 336
Decision Date: 13 OCTOBER 2009

CaseChat Overview and Summary

Noosa Venture 1 Pty Ltd, trading as Sheraton Noosa Resort & Spa, applied for approval of the Sheraton Noosa Resort & Spa Enterprise Agreement 2009. The application was made pursuant to section 185 of the Fair Work Act 2009, seeking approval of the enterprise agreement which was made during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Fair Work Act was amended by the Transitional Act, and the Senior Deputy President of the Fair Work Australia, Richards, considered the application in light of these amendments. The application was made to ensure compliance with the requirements of sections 186, 187, and 188 of the Fair Work Act.

The primary legal issue before the court was whether the Sheraton Noosa Resort & Spa Enterprise Agreement 2009 met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement complied with the provisions of sections 186, 187, and 188 of the Act, which set out the criteria for the approval of single-enterprise agreements. Additionally, the court needed to ensure that the agreement met any other relevant requirements of the Act, including those modified by the Transitional Act. The Liquor, Hospitality and Miscellaneous Union was covered by the proposed agreement, and the court had to consider whether the agreement was fair and balanced.

The court found that all the requirements for approval under the Fair Work Act 2009 had been satisfied. Senior Deputy President Richards noted that additional information provided regarding earnings against the reference instrument for various classifications under the proposed agreement assisted in making this determination. The Senior Deputy President was satisfied that the agreement met the criteria outlined in sections 186, 187, and 188 of the Act, and that no other requirements had been overlooked. Consequently, the Sheraton Noosa Resort & Spa Enterprise Agreement 2009 was approved and would operate from 20 October 2009, with a nominal expiry date of 20 October 2012.

Noosa Venture 1 Pty Ltd, trading as Sheraton Noosa Resort & Spa, was granted approval for the Sheraton Noosa Resort & Spa Enterprise Agreement 2009, effective from 20 October 2009. The agreement was approved in accordance with section 54 of the Fair Work Act 2009, and will expire on 20 October 2012 as stipulated in clause 5.1 of the agreement.

Orders