North Haven Bowling and Recreation Club Ltd

[2014] FWCA 1566

[2014] FWCA 1566

FAIR WORK COMMISSION

DECISION

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

North Haven Bowling and Recreation Club Ltd
(AG2014/3682)

NORTH HAVEN BOWLING AND RECREATION CLUB LTD ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 6 MARCH 2014

Application for approval of the North Haven Bowling and Recreation Club Ltd Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by North Haven Bowling and Recreation 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 North Haven Bowling and Recreation Club Ltd Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’). The Agreement is to cover 34 employees at the applicant’s Club in North Haven, New South Wales who are not Managers or Greenskeeping staff. 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 2 September 2013, and voting for the Agreement’s approval took place between 23 and 31 January 2014. The time limits under s 181(2) of the Act are thereby satisfied. 19 of the 20 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 February 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Negus, General Manager, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Negussaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including reduced penalty rates on Sundays, the removal of allowances for broken shifts and work performed at unsociable hours and less generous higher duties provisions. 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 rates of pay, longer minimum engagements for part time and casual employees, a paid tea break of ten minutes for shifts in excess of six hours and the provision of laundry and shoe allowances. It was also said that another benefit was the ability to cash out annual and personal leave in specified circumstances. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 15A and 36 respectively, and a disputes resolution procedure at clause 13 provides for the Commission to assist in the resolution of the dispute.

[4] At a hearing of the application on 26 February 2014, Mr G Arnold of Effective Workplace Solutions,appeared with Mr P Negus for the applicant and Mr M Dusevic for the Union. 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. The Union had filed a Declaration in relation to the application (Form 18) giving notice that it wished 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. However, the declaration also set out that the Union did not support the approval of the Agreement in its current form. Mr Dusevic raised particular concerns in relation to the following:

● the forfeiture of time off in lieu of overtime that is not taken within twelve months;
● a provision that an employee being sent home from work when unwell in the workplace be sent to a company appointed doctor,
● a requirement for employees who are unable to attend work due to illness notify the Club at least three hours prior to the commencement of their shift; and
● the ability of the Club to cut short the shift of part-time and casual employees for reasons of fluctuation in trade.

[5] Mr Arnold offered undertakings by the Club that:

● Time off in lieu of overtime be paid out if not taken within twelve months;
● An employee who is unwell in the workplace may be sent to a company appointed doctor only by consent of the employee;
● The relaxation of the requirement for an employee to inform the employer three hours prior to the commencement of the shift, that they will not be able to attend the shift, subject to them later being able to provide good and cogent reasons why they could not do so; and
● The shifts of part time and casual employees being cut short reasons of fluctuation in trade only where there is mutual consent between the employer and the employee.

Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of these undertakings is attached to the Agreement and marked as ‘Annexure A’.

[6] 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 ss 180, 186, 187, 188, 190 and 192 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the North Haven Bowling and Recreation Club Ltd Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 5 March 2014 and have a nominal expiry date of 4 March 2018.

DEPUTY PRESIDENT

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