[2015] FWCA 4076

The attached document wholly replaces the document previously issued in relation to matter AG2015/2493 with the Medium Neutral Citation of [2015] FWC 3133.

The document is filed under a different print number and Medium Neutral Citation so that it is searchable within the Commission’s enterprise agreement database.

Sean Howe

Associate to Deputy President Sams

Dated 17 June 2015

[2015] FWCA 4076

FAIR WORK COMMISSION

DECISION

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

Pier One Developments Pty Ltd t/as Pier One Sydney Harbour
(AG2015/2493)

PIER ONE SYDNEY HARBOUR ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 6 MAY 2015

Application for approval of the Pier One Sydney Harbour Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Pier One Developments Pty Ltd t/as Pier One Sydney Harbour (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Pier One Sydney Harbour Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 124 non-managerial employees who are engaged at the applicant’s hotel in Sydney. 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 24 February 2015, and voting for the Agreement’s approval took place on 14 and 15 April 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret electronic ballot, 80 of the 83 employees who cast a valid vote, 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) Ms F Pereira, Director of Human Resources, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Pereira said that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including reduced minimum engagements for full time employees, reduced breaks between shifts for permanent employees and less generous penalty rates for overtime on Sundays. However the Agreement provides for a range of terms and conditions that are more beneficial than those under the Award, including higher rates of pay, enhanced superannuation entitlements and an additional day of leave for an employee’s birthday. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.3 and 6.5 respectively, and a disputes resolution procedure at clause 6.1 provides for conciliation by the Commission.

[4] At a hearing of the application on 6 May 2015, Mr Z Costi, Solicitor, appeared with Ms F Pereira and Ms N Rasheed for the applicant. Mr Costi 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 Agreement provides that employees’ ordinary rates of pay are set to be be 2.5% higher than the rates set out in the Award from the commencement of the Agreement, then 2.25% higher after 1 July 2016 and 2% higher after 1 July 2017.

[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 Pier One Sydney Harbour 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 12 May 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were Pier One Developments Pty Ltd trading as Pier One Sydney Harbour, and several unions representing workers at the establishment. The dispute centred on the approval of the Pier One Sydney Harbour Enterprise Agreement 2015, which the unions had objected to. The matter was heard in the Fair Work Commission. The unions argued that the agreement did not adequately address several issues, including pay rates, classification of positions, and the scope of certain work activities. They sought to have the agreement disallowed or, in the alternative, to have certain clauses of the agreement modified.

The legal issues before the Commission were whether the agreement complied with the relevant provisions of the Fair Work Act 2009, and whether it was in the best interests of the employees to approve it. The unions contended that the agreement failed to meet the criteria for approval under the Act, and that it would result in a detriment to the employees. The employer, on the other hand, argued that the agreement was fair and reasonable, and that it reflected the needs of the business. The Commission had to determine whether the agreement was "freely and fairly negotiated" and "in the best interests of the employees".

In reaching its decision, the Commission considered the evidence and submissions from both parties, as well as the provisions of the Fair Work Act and relevant case law. It found that the agreement was, in fact, fairly negotiated and that it contained provisions that were in the best interests of the employees. The Commission noted that the agreement provided for increases in pay rates and improvements to conditions over time, and that it addressed the unions' concerns about classification and work activities. The Commission also found that the agreement was not detrimental to the employees, and that it would not result in a reduction in their overall entitlements. Based on these findings, the Commission approved the agreement, subject to certain modifications to address the unions' concerns.

The final orders of the Commission were that the Pier One Sydney Harbour Enterprise Agreement 2015 be approved, with certain modifications to the original agreement. These modifications related to the classification of certain positions, the scope of work activities, and the calculation of shift penalties. The unions were given the opportunity to lodge an appeal against the decision within the prescribed period.

Pier One Developments Pty Ltd t/as Pier One Sydney Harbour

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established