Nunawading Swimming Club Inc. T/A Nunawading Swimming Club

[2024] FWCA 3963

[2024] FWCA 3963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Nunawading Swimming Club Inc. T/A Nunawading Swimming Club

(AG2024/3994)

NUNAWADING SWIMMING CLUB INC. ENTERPRISE AGREEMENT 2024

Industries not otherwise assigned
COMMISSIONER REDFORD	MELBOURNE, 13 NOVEMBER 2024

Application for approval of the Nunawading Swimming Club Inc. Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement which, according to clause 1.1 of its terms, is called the Nunawading Swimming Club Inc. Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Nunawading Swimming Club Inc. T/A Nunawading Swimming Club (Nunawading Swimming). 

Undertakings

In response to several issues raised with Nunawading Swimming in relation to its application, it has provided written undertakings, a copy of which are attached in Annexure A. The undertakings relate to: 

(a)Clause 7.9 of the Agreement, which relates to overtime for part time employees; and 

(b)Clause 5.3 of the Agreement, which relates to the minimum engagement for a casual employee; and 

(c)Clause 5.7 of the Agreement, which relates to the maximum number of ordinary hours that may be worked during a day; and 

(d)Clauses 6.1 and 6.2 of the Agreement, which deals with overtime; and 

(e)Minimum engagement on a public holiday; and 

(f)Reconciliation arrangements in respect to annualised salary arrangements. 

Pursuant to s 190(4) of the Act the views of the employee bargaining representatives were sought in relation to those undertakings. No objection to the undertakings was raised. In accordance with s 191(1) of the Act, the undertakings are taken to be a term of the Agreement. 

Casual employees

On 8 November 2024 my chambers sent correspondence to Nunawading Swimming outlining a query regarding casual employees. From the F17B Declaration filed in support of this application, it appeared that of the 135 employees who will be covered by the agreement and who were invited to vote on the question of its approval, 121 were casual. Taking into account the decision of the Full Bench in Appeal by Kmart Australia Limited & Ors¹, I sought clarification that each of the persons involved in the vote were eligible to be involved. The response provided by Nunawading Swimming satisfies me that each of the persons balloted in the vote were eligible to participate in it, including each of the persons engaged as a casual employee, taking into account the principles in Kmart.  

BOOT Test

The Agreement provides for several conditions that are more advantageous than those that would apply to employees under the relevant modern Award, the Fitness Industry Award 2000 (the Award). These include superior rates of pay across all classifications, a superior penalty rate on Saturdays, a longer paid rest break and several other beneficial arrangements. 


The undertakings provided by Nunawading Swimming referred to above largely dealt with issues I raised in respect to whether employees (and reasonably foreseeable employees) covered by the Agreement will be better off if the agreement applied to them, instead of the Award. 


I note in particular that Nunawading Swimming has provided an undertaking dealing with reconciliation in respect to annualised salary which reflects the requirements of such a clause outlined in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery², particularly in relation to the frequency of reconciliation and the provision of a definable benefit if a shortfall is identified. 


I also accept that clause 5.3 of the Agreement, which provides for a minimum shift length of 1 hour for a casual employee, when read in conjunction with undertaking [2], is not disadvantageous compared with the Award, because the Award provides for a minimum shift length of 1 hour for trainees undertaking practical work, and for employees classified as an “instructor”. In this regard, I accept that an employee engaged as a “swimming coach” is an “instructor” for the purposes of clause 12.3(b) of the Award. 


The agreement does not provide for an annual leave loading entitlement, as is provided for at clause 21.2 of the Award. However, I accept the submission made by Nunawading Swimming that other advantages provided for in the agreement compared to the Award, including pay rates, more than compensate for this relative disadvantage in respect to all of the employees that will be covered by the agreement. 

Mandatory clauses – workplace delegates rights

Section 205A of the Act provides an enterprise agreement must include a workplace delegates’ rights term and, if an agreement’s delegates’ rights term is less favourable than the delegates’ rights term in one or more modern awards that cover the workplace delegates, then the term in the agreement has no effect, and the award term is taken to be a term of the enterprise agreement. 


Pursuant to s 205A of the Act, clause 26A of the Award is taken to be a term of the agreement.

Corrections
 

Several typographical errors were identified in the agreement. Pursuant to s 586 of the Act, these errors are corrected as follows:

(a)   The reference in clause 12.3 of the agreement to Schedule 1 is to be replaced with a reference to “clauses 13.6 to 13.8” and to “clauses 13.13 to 13.15”. 

(b)   The reference in clause in clause 5.7 of the agreement to clause 5.3 be replaced with a reference to clause 6.2. 

(c)   The reference in clause 6.2(c) of the agreement to clause 4.1 is to be replaced with a reference to clause 5.1. 

(d)   The reference in clause 7.9 of the agreement to Part 5 is to be replaced with a reference to Part 6.
 

(e)   At the foot of the table in clause 13.8, the statement that “…Team Members will be paid 25% loading on Saturday, 50% loading on Sunday …” should read “Team members are entitled to 150% of the weekday ordinary rate on Saturday and Sunday”. 

(f)    The reference in clause 15.14-15.16 of the agreement to clause 14.3 should be replaced with a reference to clause 15.13. 

Consideration  

Taking into account the foregoing, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters set out in ss 193A(2) – (7).   


The Agreement is approved and, in accordance with s 54 of the Act, will operate from 20 November 2024.  

COMMISSIONER

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Annexure A