Residential Care Pty Ltd ATF Butterfield Trust T/A Herston Lodge

[2015] FWCA 4976

[2015] FWCA 4976

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Enterprise agreement

Residential Care Pty Ltd ATF Butterfield Trust T/A Herston Lodge
(AG2015/3264)

HERSTON LODGE ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 23 JULY 2015

Application for approval of the Herston Lodge Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Residential Care Pty Ltd ATF Butterfield Trust (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Herston Lodge Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover six employees based in Herston, Queensland, who are domestic workers in an accommodation facility (not an aged care facility). 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 31 March 2015 and voting for the Agreement’s approval took place on 25 June 2015. The time limits under
s 181(2) of the Act are thereby satisfied. In a paper ballot, all six employees cast a valid vote and agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 July 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Gwen McIlroy, Workplace Relations Consultant,identified the Hospitality Industry (General) Award 2010 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms McIlroysaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay for all employees. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 39 and 41 respectively, and a disputes resolution procedure at clause 40 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 21 July 2015 Ms G McIlroy and Mr D Negus appeared for the applicant. Ms McIlroy 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. She explained that the rates of pay are to be increased annually by 3%, as specified in clause 14 of the Agreement. She added that the penalty rates set out at clause 16 of the Agreement are those specified in the comparable Modern Award.

[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 Herston Lodge Enterprise Agreement 2015. Pursuant to s 54 of the Act, the Agreement shall operate from 28 July 2015 and have a nominal expiry date of 27 July 2019.

DEPUTY PRESIDENT

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