Police Citizens Youth Clubs NSW Ltd

[2019] FWCA 4803

[2019] FWCA 4803

FAIR WORK COMMISSION

DECISION

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

Police Citizens Youth Clubs NSW Ltd
(AG2019/564)

PCYC NSW ENTERPRISE AGREEMENT 2018-2021

Restaurants
DEPUTY PRESIDENT BULL	SYDNEY, 9 JULY 2019

Application for approval of the PCYC NSW Enterprise Agreement 2018-2021.

[1] An application (Form F16) has been filed by Police Citizens Youth Clubs NSW Ltd(the applicant) for the approval of an enterprise agreement known as the PCYC NSW Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] Following concerns raised by the Commission, the applicant provided written undertakings regarding:

•  Definition of shift workers;

•  Pay rates for Café All-rounders, Head Cooks/Short Order Cooks, Café Supervisors and Youth Worker Coordinators;

•  Higher duties and pay rates for Saturdays, Sundays and public holidays;

•  Ordinary hours, additional hours and overtime;

•  Annual leave loading; and

•  Allowances and reimbursements

[3] On 24 June 2019, the Commission pursuant to s.190(4) of the Act sought the views of the persons it knew to be bargaining representatives for the Agreement regarding the undertakings provided by the Applicant. The bargaining representatives identified in the applicant’s Form F16 include an employee bargaining representative, Ms Sarah Wisley Transactions Team Leader, and a union bargaining representative, Ms Leah Tucker of the Australian Workers’ Union (AWU).

[4] On 25 June 2019, the applicant confirmed by email at 2:04pm that “both Leah Tucker from the AWU and Sarah Wisely the employee representative have been notified and have not raised any objection.” Shortly after at 2:09pm on the same date, Ms Tucker from the AWU wrote to chambers advising that “the undertakings provided by PCYC are currently with our Industrial Officer for his perusal and comments so I am unable to provide any advice at this time as to whether the AWU has any objections.”

[5] On the same date, 25 June 2019, Mr James Shaw Legal Officer for the AWU wrote to chambers requesting until close of business on 28 June 2019 to respond to the applicant’s undertakings, which was subsequently granted.

[6] On 1 July 2019, following a brief delay, Mr Shaw provided AWU’s response to the applicant’s undertakings. Two issues were raised by the AWU:

•  In respect of the restaurant and beverage classification: “The AWU submits that there should be an Undertaking that pay rates not fall below the award”

•  In respect of Annual Leave Loading: “The AWU submits that this undertaking should include Club Managers”

[7] On 2 July 2019, the applicant provided a reply to the two issues raised by the AWU. The applicant submits that an undertaking that pay rates not fall below the Award is not required as s.206 of the Actprovides that the base rate of pay under an Enterprise Agreement shall not be less than the modern award rate or the National Minimum Wage Order.

[8] The applicant further submits that the inclusion of Club Managers in the undertaking with respect to annual leave loading is unnecessary. In support of this, the applicant submits that when comparing the Club Managers against Level 7 of the Fitness Industry Award 2010 the Club Managers wages are significantly above the Award rate at the time the application for approval of the Agreement by the Commission was made. The applicant submits that this above award rate more than compensates for the absence of annual leave loading.

[9] A copy of the undertakings is attached at the end of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. I am satisfied that the undertakings are appropriate and meet the requirements of s.190 of the Act.

[10] Subject to the undertakings referred to the above, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[11] The Australian Workers’ Union (AWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7days after approval. The nominal expiry date of the Agreement is 31 July 2021.

DEPUTY PRESIDENT

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