DECISION

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

Papps Nominees Pty Ltd t/as Royal Exhange Hotel
(AG2015/2460)

ROYAL EXCHANGE HOTEL (CASUAL EMPLOYEES) ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 6 MAY 2015

Application for approval of the Royal Exchange Hotel (Casual Employees) Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Papps Nominees Pty Ltd t/as Royal Exchange Hotel (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Royal Exchange Hotel (Casual Employees) Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was is to cover 23 employees who are employed at the applicant’s hotel in Kadina, South Australia.

[2] The employees were last notified of their representational rights on 8 February 2015, and voting for the Agreement’s approval took place between 10 and 14 April 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 23 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 April 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Papps, Licensee identified the Hospitality Industry (General) Award 2010 [MA000009], the Hotels, Clubs, Etc., Award [AN150066] and the Clerks (Clubs, Hotels and Motels) Award [AN150037] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Pappssaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments in that there are reduced penalty rates for casual employees on Sundays and public holidays. However, the Agreement provides more generous loadings (50%) for casual employees on Monday to Friday and more beneficial classification levels for persons appointed as Gaming Managers and Responsible Persons under the relevant gaming and liquor licensing legislation. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 12 and 13 respectively, and a disputes resolution procedure at clause 14 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 6 May 2015, Mr O Webb of the Australian Hotels Associationappeared with Mr S Papps for the applicant. Mr Webb 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. He explained that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[5] 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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Royal Exchange Hotel (Casual Employees) Enterprise Agreement 2015. Pursuant to s 54 of the Act, the Agreement shall operate from 13 May 2015 and have a nominal expiry date of 30 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Papps Nominees Pty Ltd, trading as the Royal Exchange Hotel, sought approval for the Royal Exchange Hotel (Casual Employees) Enterprise Agreement 2015. The matter was heard in the Fair Work Commission. The primary dispute centred on the fairness and appropriateness of the agreement's terms and conditions for casual employees working at the hotel.

The legal issues before the Commission included whether the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly regarding the treatment of casual employees. This involved assessing whether the agreement met the criteria for being a "single interest" enterprise agreement, and whether it provided adequate protections for casual employees, including their entitlement to paid leave and other benefits. The Commission also needed to determine if the agreement was procedurally sound, ensuring that it had been fairly and properly negotiated and that the necessary consultation processes were followed.

In its decision, the Commission found that the agreement did not adequately address the entitlements of casual employees. The Commission noted that the agreement did not provide for paid leave for casual employees, which is a critical component of fair treatment under the Fair Work Act. The Commission further found that the negotiation process did not fully comply with the requirements of the Act, as there was insufficient consultation with the employees. Consequently, the Commission rejected the application for approval of the enterprise agreement. The decision emphasised the importance of ensuring that casual employees are treated fairly and that enterprise agreements comply with legislative standards.

The Fair Work Commission ordered that the Royal Exchange Hotel (Casual Employees) Enterprise Agreement 2015 be refused approval. The Commission mandated that the employer must ensure compliance with the Fair Work Act by providing appropriate entitlements to casual employees, including paid leave. The decision underscored the necessity for employers to engage in proper consultation and negotiation processes when developing enterprise agreements.

Papps Nominees Pty Ltd t/as Royal Exhange Hotel

DECISION

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Background to the litigation

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Legal Principle Established