Quicksilver Connections Limited T/A Green Island Resort

[2014] FWCA 2075

[2014] FWCA 2075

FAIR WORK COMMISSION

DECISION

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

Quicksilver Connections Limited T/A Green Island Resort
(AG2014/3884)

GREEN ISLAND RESORT AWU ENTERPRISE AGREEMENT 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 28 MARCH 2014

Application for approval of the Green Island Resort AWU Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Quicksilver Connections Limited t/as Green Island Resort (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Green Island Resort AWU Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’). The Agreement is to cover 79 employees who are employed in various roles at the applicant’s resort on Green Island, Queensland.

[2] The employees were last notified of their representational rights on 10 January 2014, and voting for the Agreement’s approval took place between 18-19 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, 17 of the 20 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr T Baker, Managing Director identified the Hospitality Industry (General) Award 2010 [MA000009], the Hotels, Resorts and Certain Other Licensed Premises Award - State (Excluding South East Queensland) 2003 [AN140148], the Building Construction Industry Award - State 2003 [AN140043] and the Engineering Award - State 2002 [AN140107] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Bakersaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on Saturdays, Sundays and between 7:00pm and 7:00am and a less generous meal allowance. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher loaded base rates of pay, a ‘commute allowance’ and a ‘language allowance’. Rates of pay are to be increased by 3% on 1 April 2014, 1 April 2015, 1 April 2016 and 1 April 2017. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory consultation term at Schedule 3, Clause 1 and a disputes resolution procedure at clause 2.7 provides for conciliation and arbitration by the Commission. However, the Agreement does not contain the mandatory flexibility clause and pursuant to s 202(4) of the Act, the model clause becomes a term of the Agreement.

[4] At a hearing of the application on 14 March 2014, Mr B Cooper of Livingstones Australia,appeared with Ms T Pinches and Ms S O’Donnell for the applicant and Ms S Winn appeared with Mr B Watson for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. However, the Union raised a concern that the dispute resolution clause set out that employees were only able to have a witness present at any stage during the procedure, rather than a representative. Mr Cooper 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 offered to provide an undertaking that all employees would be entitled to be represented at any stage of the dispute resolution procedure. The Union agreed to this undertaking. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[5] Having heard the parties’ 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, 188, 190, 191 and 192, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Green Island Resort AWU Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 21 April 2014 and have a nominal expiry date of 20 April 2018.

DEPUTY PRESIDENT

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