Petersham RSL Club Ltd Summary

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Fair Work Commission (FWC) was asked to consider a dispute between Petersham RSL Club Limited (the employer) and the club managers' union (the applicant). The union sought to have the Petersham RSL Club Limited (Club Managers) Enterprise Agreement 2014 (the Agreement) declared as no longer in effect. The union argued that the Agreement had lapsed due to the employer's failure to provide the required notice of termination to the Fair Work Commission. The union also contended that the employer had unilaterally implemented new terms and conditions that were more disadvantageous to the employees, in breach of the Agreement. The matter was heard and determined by the Fair Work Commission, which was required to consider the legal validity of the Agreement, the employer's obligations under the Fair Work Act 2009, and the union's right to seek a declaration of the Agreement's termination.

The central legal issues before the FWC were whether the Agreement had indeed lapsed due to the employer's failure to provide the requisite notice of termination, and if the employer had breached the Agreement by unilaterally implementing new terms and conditions. The FWC needed to examine the provisions of the Fair Work Act 2009 and the Agreement itself, and assess the employer's compliance with those legal requirements. The union's right to seek a declaration of the Agreement's termination was also a significant issue, as it involved the interpretation of the Fair Work Act and the principles of good faith bargaining and procedural fairness. The FWC's decision on these matters would have important implications for the employer, the union, and the employees, as it would determine the enforceability of the Agreement and the applicable terms and conditions of employment.

After carefully considering the evidence and arguments presented by both parties, the FWC determined that the Agreement had indeed lapsed due to the employer's failure to provide the required notice of termination. The FWC found that the employer had not complied with the relevant provisions of the Fair Work Act, and that the union's application for a declaration of the Agreement's termination was therefore well-founded. Furthermore, the FWC held that the employer had breached the Agreement by unilaterally implementing new terms and conditions that were more disadvantageous to the employees. The FWC emphasised the importance of good faith bargaining and procedural fairness in the context of enterprise agreements, and found that the employer's actions had fallen short of the required standards. The FWC's decision was thus in favour of the union, and it declared the Agreement to be no longer in effect.

The final orders made by the FWC included a declaration that the Petersham RSL Club Limited (Club Managers) Enterprise Agreement 2014 was no longer in effect, effective from a specified date. The FWC also ordered the employer to cease implementing the new terms and conditions that were more disadvantageous to the employees, and to revert to the terms and conditions set out in the Agreement until a new agreement was reached. The FWC further ordered the employer to provide the union with a written statement of the reasons for its decision, and to provide the Fair Work Commission with a copy of the written statement within a specified period. These orders were designed to ensure that the employer complied with its legal obligations and that the employees were not adversely affected by the lapse of the Agreement.

Petersham RSL Club Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established