Partnership of Mitchell Partners (D.R Mitchell, J.P. Mitchell, L.A. Mitchell, L.M. Mitchell, M.A. Mitchell, and P.J Mitchell) and Valuestream Investment Management Pty Limited (ACN 094 107 034) as responsible... Summary

[2014] FWCA 2960

FAIR WORK COMMISSION

DECISION

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

Partnership of Mitchell Partners (D.R Mitchell, J.P. Mitchell, L.A. Mitchell, L.M. Mitchell, M.A. Mitchell, and P.J Mitchell) and Valuestream Investment Management Pty Limited (ACN 094 107 034) as responsible entity for the Knights Coastal Land Fund t/as Blue Dolphin Holiday Resort
(AG2014/962)

BLUE DOLPHIN HOLIDAY RESORT ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 MAY 2014

Application for approval of the Blue Dolphin Holiday Resort Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the Partnership of Mitchell Partners (D.R Mitchell, J.P. Mitchell, L.A. Mitchell, L.M. Mitchell, M.A. Mitchell, and P.J Mitchell) and Valuestream Investment Management Pty Limited (ACN 094 107 034) as responsible entity for the Knights Coastal Land Fund t/as Blue Dolphin Holiday Resort (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Blue Dolphin Holiday Resort Enterprise Agreement 2014 (the ‘Agreement’). The Agreement is to cover 25 employees, except senior management or console operators employed at a service station attached to the holiday park, who are engaged within various classifications at the Blue Dolphin Holiday Resort, Yamba NSW. 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 March 2014, and voting for the Agreement’s approval took place on 14 and 15 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 16 of the employees voted to approve the Agreement. The application for approval of the Agreement was lodged on 28 April 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Danielle Mitchell, General Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] and the Motels, Accommodation and Resorts (State) Award [AN120349] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Mitchell said that the Agreement does contain some terms and conditions which are less beneficial than those under the reference instruments, including the removal of annual leaving loading, weekend penalty rates and a laundry allowance. However, the penalty rates and allowances have been factored into the base rates, which are 23% higher for permanent employees and 13% higher for casual employees. It was also said that the night work penalty and overnight stay allowance are higher than under the reference instruments. Rates of pay are to be adjusted annually adjusted in accordance with the Commission’s Minimum Wage Review decisions, and are to be applied on 1 July each year during the nominal term of the Agreement. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clause number 5 and clause number 4 respectively, and a dispute resolution procedure at clause 3 provides for mediation, conciliation and arbitration by the Commission.

[4] At a hearing of the application on 6 May 2014, Ms A Kaye, Solicitor, of Enterprise Initiatives Pty Ltd, appeared for the applicant. Ms Kaye 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. Ms Kaye said that comparisons made between the Award and the Agreement clearly demonstrated that the BOOT had been satisfied.

[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 Blue Dolphin Holiday Resort Enterprise Agreement 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 13 May 2014 and have a nominal expiry date of 12 May 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by the Partnership of Mitchell Partners, comprising D.R. Mitchell, J.P. Mitchell, L.A. Mitchell, L.M. Mitchell, M.A. Mitchell, and P.J. Mitchell, and Valuestream Investment Management Pty Limited, for approval of the Blue Dolphin Holiday Resort Enterprise Agreement 2014. This application was brought under the Fair Work Act 2009, seeking the court's endorsement of an agreement that was intended to govern the employment conditions of the resort's staff. The legal issues at the heart of this case centred on the procedural fairness of the agreement, the compliance of the agreement with statutory requirements, and whether the agreement adequately represented the interests of the employees.

The court had to examine whether the process leading to the agreement's creation was conducted in a manner that was procedurally fair and transparent. This involved assessing whether there was adequate consultation with the employees and whether the agreement fairly reflected the outcomes of these consultations. Furthermore, the court needed to determine if the agreement met the statutory requirements outlined in the Fair Work Act, including whether it contained the necessary provisions and whether it was made in good faith. The court also had to consider whether the agreement adequately represented the interests of the employees and whether it provided fair and reasonable terms.

In its reasoning, the court found that the process leading to the agreement was procedurally fair, with adequate consultation and transparency. The court was satisfied that the agreement complied with the statutory requirements and that it contained all the necessary provisions. It was determined that the agreement was made in good faith and that it adequately represented the interests of the employees, providing fair and reasonable terms. Based on these findings, the court approved the Blue Dolphin Holiday Resort Enterprise Agreement 2014. This decision was made under the authority granted to the Fair Work Commission by the Fair Work Act 2009, and the agreement was approved effective from the date of the decision.

Partnership of Mitchell Partners (D.R Mitchell, J.P. Mitchell, L.A. Mitchell, L.M. Mitchell, M.A. Mitchell, and P.J Mitchell) and Valuestream Investment Management Pty Limited (ACN 094 107 034) as responsible...

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