Northern Rise Pty Ltd T/A Northern Rise Village Services

[2016] FWCA 3849

[2016] FWCA 3849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185—Enterprise agreement

Northern Rise Pty Ltd T/A Northern Rise Village Services
(AG2016/3116)

NORTHERN RISE OFFSHORE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 JUNE 2016

Application for approval of the Northern Rise Offshore Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Northern Rise Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Northern Rise Offshore Agreement 2016 (the ‘Agreement’). The Agreement is to cover five employees who work on offshore facilities in the resources sector and are engaged in the following classifications: Chef Manager, Qualified Chef/Cook (performing duties of both), Handyperson, Qualified Cook/Service Attendant (performing duties of both) and Service Attendant. 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 18 March 2016, and voting for the Agreement’s approval took place on 26 April 2016. The time limits under
s 181(2) of the Act are thereby satisfied. In a postal ballot, all five of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 May 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Melanie Wilson, Human Resources Advisor identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Wilsonsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instrument and that these compensate for a number of reduced allowances in the Agreement. The Agreement’s wage rates are around 70% higher than the Award. 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.

[4] The Agreement provides for the mandatory flexibility term at Clause 38. A disputes resolution procedure at Clause 36 provides for conciliation, and, if agreed, arbitration by the Commission or an agreed third party. The Agreement contains a consultation term which is not strictly compliant with s 205(1)(a)(ii) of the Act.

[5] At a hearing of the application on 14 June 2016, Ms Melanie Wilson and Mr John Hodgins,appeared for the applicant. They 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 deficiency in the consultation term was acknowledged and the applicant agreed to provide an undertaking to rectify the matter. The applicant also agreed to provide an undertaking in respect of the Agreement’s redundancy clause (Clause 33) to ensure that it complies with the requirements of the National Employment Standards for employees with more than one year and less than two years’ service. Later that day, the undertakings were received from Ms Wilson concerning the above matters.

[6] Pursuant to s 191(1) of the Act, the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to the Agreement and marked as ‘Annexure A’.

[7] 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, 188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Northern Rise Offshore Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 21 June 2016 and have a nominal expiry date of 14 June 2020.

DEPUTY PRESIDENT

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