Oak Flats Bowling & Recreation Club Ltd

[2014] FWCA 9010

[2014] FWCA 9010

FAIR WORK COMMISSION

DECISION

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

Oak Flats Bowling & Recreation Club Ltd
(AG2014/10135)

OAK FLATS BOWLING AND RECREATION CLUB EMPLOYEES AND MANAGERS ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 18 DECEMBER 2014

Application for approval of the Oak Flats Bowling and Recreation Club Employees and Managers Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Oak Flats Bowling & 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 Oak Flats Bowling and Recreation Club Employees and Managers Enterprise Agreement (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 95 employees who are employed as general club employees, maintenance and horticultural employees and non-executive managers at the applicant’s Club in Oak Flats, New South Wales. 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 May 2014, and voting for the Agreement’s approval took place on 27 November 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 69 of the 74 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 December 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M O’Hara identified the Registered and Licensed Clubs Award 2010 [MA000119], the Club Employees (State) Award [AN120136], the Club Managers’ (State) Award 2006 [AN120138] and the Bowling and Golf Clubs Employees (State) Award [AN120079] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr O’Harasaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, in that the Agreement does not provide for allowances for working early, late or away from work and there are no minimum engagements for employees undergoing training or attending staff meetings. However, the Agreement provides for a number of terms and conditions that are in excess of the Award, including three hour minimum engagements for casual employees, a tea break of ten minutes where an employee works more than six hours in one day and enhanced annual leave loading arrangements. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. The Agreement provides for the mandatory flexibility and consultation terms at clauses 13 and 44 respectively, and a disputes resolution procedure at clause 41 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 9 December 2014, Mr C Langton of the Registered and Licensed Clubs Association of New South Walesappeared with Mr M O’Hara for the applicant and Mr C Acev for the Union. Mr Langton 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) supporting the approval of the Agreement and giving notice that it wishes 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 Union sought undertakings in relation to the Agreement’s definition of a Shiftworker as being a seven day shiftworker who works at least 30 Sundays and public holidays per year, the Secure Employment clause of the Agreement, which did not prohibit the employer from unreasonably refusing casual conversion and a provision allowing the employer to pay wages on Fridays. Mr Acev also submitted that the ability of the employer to change penalty rates in accordance with any changes under the Award was inconsistent with provisions of the Act allowing for the variation of enterprise agreements. Mr Langton noted that it was a common provision in enterprise agreements for remuneration to be varied in accordance with the Commission’s Minimum Wage Review decisions and that this could not be said to be inconsistent with the Act’s provision relating to variation of enterprise agreements and that this reasoning should apply similarly to any changes in the penalty rates under the Modern Award which might be made in the future by a Full Bench of the Commission. The other concerns of the Union go to matters relevant to the BOOT. I accept Mr Langton’s submission and, on balance, I am satisfied that the Agreement passes the BOOT.

[5] 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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Oak Flats Bowling and Recreation Club Employees and Managers Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 16 December 2014 and have a nominal expiry date of 15 December 2018.

DEPUTY PRESIDENT

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