Revesby Workers Club Ltd

[2014] FWCA 8134

[2014] FWCA 8134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 210 - Application for approval of a variation of an enterprise agreement

Revesby Workers Club Ltd
(AG2014/8063)

REVESBY WORKERS' ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 20 NOVEMBER 2014

Application for variation of the Revesby Workers' Enterprise Agreement 2014.

[1] An application has been made by Revesby Workers Club Ltd (the ‘applicant’), pursuant to s 210 of the Fair Work Act 2009 (the ‘Act’) for approval of a variation to a single enterprise agreement known as the Revesby Workers’ Enterprise Agreement 2014 [AE407360] (‘the Agreement’). The Agreement currently covers 300 employees at the applicant’s Club in Revesby, New South Wales.

[2] In the Employer’s Declaration in support of the application (Form F23A), Mr S Spicer, Human Resources Manager, advised that on 2 October 2014, employees were notified of the construction of a new cafe, which is physically connected to the applicant’s Club and whose staff will be employees of the Club. Employees and the Union were provided with the text of the proposed variation, where it would be found in the enterprise Agreement as varied (under cl 1.10 - Definitions and Interpretation). In a secret ballot conducted on 21 October 2014, 43 of the 44 employees who cast a valid vote, agreed to approve the proposed variation (ss 207, 208, 209). I am satisfied that the employees have genuinely agreed to the variation of the Agreement (ss 211(3)(c), 188). The application was lodged on 3 November 2014, therefore satisfying s 210(3)(a) of the Act.

[3] In a Statutory Declaration in relation to the application (Form F23B), United Voice, Liquor and Hospitality Division (the ‘Union’ confirmed that it was a bargaining representative for one or more of its members who are covered by the Agreement, that it was entitled to represent the industrial interests of the employees who are covered by the Agreement and that it agreed with the statutory declaration of Mr Spicer.

[4] The effect of the variation is to extend coverage of the Agreement to employees working at the Two Two One Two Cafe in Revesby (the ‘Cafe’), New South Wales, which is owned by the applicant by including the following in the list of locations at which employees covered by the Agreement work under cl 1.10 - Definitions and Interpretation:

‘Two Two One Two Cafe (Shop 1, 20-30 Blarney street Revesby, NSW 2212).’

[5] I note that unless the Cafe is covered by the enterprise agreement, the employees would be covered by the less beneficial conditions of the relevant Modern Award. I am satisfied that the Agreement, as so varied, meets the Better Off Overall Test (ss 211(4), (5), 193).

[6] At a hearing of the application on 13 November 2014, Mr S Spicer appeared for the applicant and Ms J King for the Club. Mr Spicer described the background to the variation and submitted that its inclusion in the Agreement should be approved. Mr Spicer explained that the Cafe, which had an 80 seat capacity was due to open in February 2015. Ms King supported the submission of Mr Spicer and confirmed that the Union supported the approval of the variation by the Commission.

[7] Section 211(1) of the Act provides that the Commission must approve a variation made pursuant to s 210, if:

‘(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.’

[8] Having reviewed the pre-approval process documentation and the proposed variation, I am satisfied that all of the requirements of the Act, in particular ss 207, 208, 209, 210 and 211 of the Act, in so far as relevant to this application, have been met. Specifically, I am satisfied there are no public interest grounds (let alone serious ones) for not approving the variation. Accordingly, I approve the proposed variation to the Revesby Workers’ Enterprise Agreement 2014. Pursuant to s 216 of the Act, the variation shall take effect on 20 November 2014 and remain in force until the Agreement is rescinded or replaced.

DEPUTY PRESIDENT

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<Price code A, AE407360  PR557801>