Ocean Group Operations Pty Ltd t/as Club Croc Hotel Airlie Beach

[2016] FWCA 3460

[2016] FWCA 3460

FAIR WORK COMMISSION

DECISION

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

Ocean Group Operations Pty Ltd t/as Club Croc Hotel Airlie Beach
(AG2016/864)

CLUB CROC HOTEL AGREEMENT - 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 30 MAY 2016

Application for approval of the Club Croc Hotel Agreement - 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Ocean Group Operations Pty Ltd t/as Club Croc Hotel Airlie Beach (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Club Croc Hotel Agreement – 2016 (the ‘Agreement’). The Agreement was negotiated with two nominated Employee Bargaining Representatives (EBRs) and the Australian Workers’ Union (the ‘Union’) and is to cover 14 employees, other than salaried employees, who are employed at the applicant’s hotel in Airlie Beach, Queensland. 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 21 October 2015, and voting for the Agreement’s approval took place on 16 March 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the approval of the Agreement, all 12 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 May 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Ms J Duncan, Group General Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] and the Clerks – Private Sector Award 2010 [MA000002] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Duncansaid that the Agreement provides for enhanced long service leave entitlements and that there are no terms less beneficial than contained within the Awards. However, this is not strictly correct, as the Agreement provides for higher rates of pay into which a number of entitlements under the Award are said to be ‘loaded’. Rates of pay are to be increased by 1% on 1 July 2016, 2% on 1 July 2017 and 2.5% on 1 July 2018. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility term at clause 7, and a disputes resolution procedure at clause 9 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on Ms J Duncan,appeared for the applicant, Ms S Jennings and Ms J Cleary appeared in their respective capacities as EBRs and Mr P Robertson appeared for the Union. Ms Duncan 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. She offered undertakings to the effect that the consultation term at cl 8.1(b) should also apply regular rosters and hours of work and that the disputes resolution clause at cl 9.1 includes disputes in relation to the National Employment Standards. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. Ms Jennings and Ms Cleary indicated their support for the approval of the Agreement. The Union had filed a Declaration in relation to the application (Form 18) giving notice that it wishes to be covered by the Agreement (s 183). An initial objection to the Union being covered by the Agreement made by the applicant was withdrawn during the hearing. For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[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, 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 Club Croc Hotel Agreement – 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 2 June 2016 and have a nominal expiry date of 26 June 2019.

DEPUTY PRESIDENT

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