R and M Ramage Pty Ltd

[2014] FWCA 1596

[2014] FWCA 1596

FAIR WORK COMMISSION

DECISION

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

R and M Ramage Pty Ltd
(AG2014/3767)

R & M RAMAGE PTY LTD ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 6 MARCH 2014

Application for approval of the R & M Ramage Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by R and M Ramage Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the R & M Ramage Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 5 employees who are perform bar and reception work at the Ocean Centre Hotel in Geraldton, Western Australia. I note that another enterprise agreement is proposed to cover employees working at the hotel performing housekeeping duties and who are employed by an associated entity of the applicant. 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 14 October 2013, and voting for the Agreement’s approval took place on 7 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 4 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 February 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Ramage, Managing Director identified the Hospitality Industry (General) Award 2010 [MA000009] and the Hotel & Tavern Workers’ Award, 1978 [AN160174] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Ramagesaid 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 evenings, weekends and public holidays and no entitlement to annual leave loading. However, these have been loaded into higher base rates of pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at Part 7, clauses and 3 respectively, and a disputes resolution procedure at clause Part7, clause 1 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 4 March 2014, Mr G Lilleyman of Employment Services and Solutions Australia Pty Ltd,appeared with Mr M Ramage for the applicant. Mr Lilleyman 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 base rates of pay under this Agreement were higher than those under the enterprise agreement covering housekeeping staff at the hotel (See: Viewscope Pty Ltd [2014] FWCA 1599) as employees working in bar and reception positions at the business had historically been paid a loaded rate of pay, while the housekeeping staff were paid a separate and higher rate of pay for work performed on weekends and public holidays. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. However, Part 4, cl 1(d) set out that where an employee is paid above the minimum rates set out in the Agreement, such increases may be absorbed into the rate of pay. Mr Lilleyman clarified that employees would never be paid less than the rates set out in the Agreement as increased by the Commission’s Minimum Wage Review decisions.

[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 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the R & M Ramage Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 11 March 2014 and have a nominal expiry date of 15 December 2017.

DEPUTY PRESIDENT

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