Petersham RSL Club Ltd

[2014] FWCA 7445

[2014] FWCA 7445

FAIR WORK COMMISSION

DECISION

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

Petersham RSL Club Ltd
(AG2014/9157)

PETERSHAM RSL CLUB LIMITED (CLUB MANAGERS) ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 23 OCTOBER 2014

Petersham RSL Club Limited (Club Managers) Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Petersham RSL 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 Petersham RSL Club Limited (Club Managers) Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with 12 nominated Employee Bargaining Representatives and is to cover the same 12 employees who are employed as Club Managers at the applicant’s Club in Petersham, 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 9 July 2014, and voting for the Agreement’s approval took place between 16 and 19 September 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 12 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 September, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Fitzgerald, Chief Executive, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Managers’ (State) Award 2006 [AN120138] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Fitzgeraldsaid that there was one aspect in which the reference instruments were more beneficial, in that the Agreement did not provide for penalty rates for work performed between 7:00pm and 7:00am, Monday to Friday. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay and paid birthday leave for employees with more than two years service. It was also said that another benefit included the ability to cash out annual leave in certain circumstances. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 11 and 12 respectively, and a disputes resolution procedure at clause 13 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 17 October 2014, Mr D Fitzgerald appeared for the applicant. Mr Fitzgerald 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 the rates of pay were between 14.02% and 50.3% higher than those under the reference instruments and that rates of pay are to be increased by 3.25% on the first anniversary of the approval of the Agreement, by 3% on the second anniversary and by 3% on the third anniversary.

[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 Petersham RSL Club Limited (Club Managers) Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 24 October 2014 and have a nominal expiry date of 23 October 2018.

DEPUTY PRESIDENT

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