Port Douglas and District Combined Club

[2014] FWCA 3881

FAIR WORK COMMISSION

DECISION

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

Port Douglas and District Combined Club
(AG2014/6141)

PORT DOUGLAS AND DISTRICT COMBINED CLUBS INC ENTERPRISE BARGAINING AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 JUNE 2014

Application for approval of the Port Douglas and District Combined Clubs Inc Enterprise Bargaining Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Port Douglas District and Combined Club (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Port Douglas and District Combined Clubs Inc Enterprise Bargaining Agreement 2014 (the ‘Agreement’). The Agreement is to cover 21 employees who are employed at the applicant’s Club in Port Douglas, Queensland.

[2] The employees were last notified of their representational rights on 4 March 2014, and voting for the Agreement’s approval took place between 1 and 8 May 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 15 of the 16 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr K Rowley, Manager, identified the Registered and Licensed Clubs Award 2010 [MA000058] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Rowleysaid that the Agreement provides for some terms and conditions that are less beneficial than those under the reference instrument, including the removal of penalty rates for work performed on weekends and public holidays. However, the base rate of pay is substantially higher than those under the Award. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 11 June 2014, Ms P Kitto appeared with Mr K Rowley for the applicant. Ms Kitto 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. Ms Kitto explained that the rates of pay were 20% above the base rates of pay under the Award and were to be increased by 2.5% on 1 July 2014, 1 July 2015 and 1 July 2016.

[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 Port Douglas and District Combined Clubs Inc Enterprise Bargaining Agreement 2014 Pursuant to s 54 of the Act, the Agreement shall operate from 18 June 2014 and have a nominal expiry date of 30 April 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in the dispute were the Port Douglas and District Combined Clubs Inc and their employees. The nature of the dispute was an application for approval of the Enterprise Bargaining Agreement 2014. The court involved was the Fair Work Commission, which is Australia's workplace relations tribunal.

The legal issues the court was required to decide involved whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. The court had to consider if the agreement provided for the safety, health and welfare of employees, if it was free from coercive conduct, and if it complied with the minimum entitlements set out in the Act. The court also had to consider whether the agreement had been made in good faith and if it provided for efficient, productive and flexible workplace relations.

The court found that the proposed agreement met all the necessary criteria for approval. The agreement provided for the safety, health and welfare of employees, and it was free from coercive conduct. The agreement complied with the minimum entitlements set out in the Act, and it was made in good faith. The court found that the agreement provided for efficient, productive and flexible workplace relations, and it approved the Enterprise Bargaining Agreement 2014. The court did not make any orders as the agreement had already been approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established