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 case involves Pier One Developments Pty Ltd, trading as Pier One Sydney Harbour, which applied to the Fair Work Commission (FWC) for approval of the Pier One Sydney Harbour Enterprise Agreement 2015. The applicants were seeking to have the agreement approved under the Fair Work Act 2009. The dispute centred around whether the agreement met the legal requirements for approval, particularly concerning the FWC's power to approve an enterprise agreement where employees of an employer are not covered by an existing registered agreement.

The central legal issue before the FWC was whether it had the authority to approve the proposed enterprise agreement when employees were not covered by a pre-existing registered agreement. The applicants argued that the FWC had the power to approve the agreement despite the absence of a registered agreement, while the respondents contended that the FWC lacked such authority without an existing registered agreement. This issue required interpretation of relevant sections of the Fair Work Act and the FWC's powers under the legislation.

The FWC considered the provisions of the Fair Work Act, specifically sections 172 and 173, which detail the process for approving enterprise agreements. The FWC determined that section 172 allows for the approval of an enterprise agreement even if employees are not covered by a pre-existing registered agreement. The FWC held that the absence of a registered agreement did not preclude it from approving the proposed agreement if it met the criteria for fair and portable terms and conditions. The FWC found that the agreement satisfied these requirements, thus granting the application for approval. The FWC's decision affirmed its jurisdiction to approve the agreement in the absence of a pre-existing registered agreement.

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

DECISION

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