Rooty Hill RSL Club Limited - [2014] FWCA 2191

[2014] FWCA 2191

FAIR WORK COMMISSION

DECISION

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

Rooty Hill RSL Club Limited
(AG2014/3880)

ROOTY HILL RSL CLUB ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 9 APRIL 2014

Application for approval of a single enterprise agreement - Union objections to approval - whether Agreement meets the Better Off Overall Test (BOOT) - absence of certain penalty rates - employees not worse off - evidence supports a finding that the Agreement meets the BOOT - inclusion of drug and alcohol testing - whether contrary to ss 55(4), 97 and 107 of the Fair Work Act 2009 - drug and alcohol testing not a detriment - no breach of the Act - Agreement approved.

[1] Rooty Hill RSL Club Ltd (the ‘Club’ or the ‘applicant’) has negotiated a new single enterprise agreement, the Rooty Hill RSL Club Enterprise Agreement 2014 (the ‘Agreement’) with United Voice (the ‘Union’) under Part 2-4 of the Fair Work Act 2009 (the ‘Act’). The Agreement is to cover 421 of its employees engaged by the Club in various gaming, restaurant and bistro, sporting and recreational, maintenance and cleaning, bar, administrative, team leader and supervisor duties, except for management and executive level employees. There was no dispute that the employees would otherwise be covered by the Registered and Licensed Clubs Award 2010 [MA000058] (the ‘Award’).

[2] The employees were last notified of their representational rights on 19 September 2013 (s 173 of the Act) and voting for the approval of the Agreement was conducted by secret ballot between 13-19 February 2014. The result of the ballot was 234 employees in favour of approving the Agreement and 158 employees against approval. I note that an earlier vote for approval of the Agreement taken from 27-28 December 2013, was defeated by a majority of the employees who voted on that occasion.

[3] On 4 March 2014, the Club filed an application, pursuant to s 185 of the Act, for approval of the Agreement, together with an Employer’s Statutory Declaration in relation to the Agreement (Form F17), a Statutory Declaration of United Voice in respect to the Agreement (Form F18) and a copy of the proposed Agreement.

[4] At this point, I am satisfied that there are no concerns as to the Club’s compliance with all of the statutory pre-approval process requirements as set out in ss 172-185 of the Act, although I note that the result of the ballot for approval of the Agreement was hardly a ringing endorsement of its terms; less than 60% of the employees having voted in favour of the Agreement. Perhaps this was a result of the Union actively campaigning against the Agreement’s approval. However, the size of the voting majority is not a relevant consideration in the pre-approval process. S 182 of the Act merely requires a simple majority of those employees who cast a valid vote in the ballot agreeing to approve the Agreement.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWCA 2191
Decision Date: 9 APRIL 2014

CaseChat Overview and Summary

The applicants, Rooty Hill RSL Club Limited, sought approval of a single enterprise agreement under the Fair Work Act 2009. The union raised objections to the approval of the agreement, primarily concerning the Better Off Overall Test (BOOT) and the inclusion of drug and alcohol testing provisions. The court was tasked with determining whether the agreement met the BOOT and if the inclusion of drug and alcohol testing was contrary to certain sections of the Fair Work Act.

The primary legal issue before the court was whether the proposed agreement complied with the BOOT, as stipulated in section 173 of the Fair Work Act. Additionally, the court had to assess if the inclusion of drug and alcohol testing provisions contravened sections 55(4), 97, and 107 of the Act. The union argued that the agreement did not meet the BOOT and that the drug and alcohol testing provisions were an unlawful detriment to employees.

In delivering the judgment, the court found that the evidence supported a conclusion that the agreement met the BOOT, as employees would not be worse off overall under the new terms. Regarding the drug and alcohol testing, the court held that such provisions did not constitute a detriment to employees and did not breach the Act. Consequently, the court approved the agreement, finding it to be in compliance with the statutory requirements.

The court made an order approving the single enterprise agreement, subject to the conditions and provisions as set out in the application. The union's objections were dismissed, and the agreement was approved as meeting the necessary legal standards.

Orders