FAIR WORK COMMISSION

DECISION

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

FreeSpirit Resorts Pty Ltd
(AG2015/2392)

FREESPIRIT EMPLOYMENT AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 MAY 2015

Application for approval of the FreeSpirit Employment Agreement 2015..

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by FreeSpirit Resorts 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 FreeSpirit Employment Agreement 2015 (the ‘Agreement’). The Agreement is to cover 91 employees who are employed at the applicant’s resorts and holiday parks in Queensland, Western Australia and the Northern Territory.

[2] The employees were last notified of their representational rights on 10 March 2015 and voting for the Agreement’s approval took place between 2 and 8 April 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 65 of the 79 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 April 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Y Bristow, Chief Operating Officer, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Bristowsaid 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 instrument and that there are no less beneficial terms. However, this is not strictly true, as the Agreement provides for higher rates of pay into which a number of penalty rates and allowances are ‘loaded’. Nevertheless, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 50 and 51 respectively, and a disputes resolution procedure at clause 45 erroneously refers to resolution by the Fair Work Ombudsman, which I take to be a reference to the Commission.

[4] At a hearing of the application on 27 April 2015, Ms Y Bristow and Ms D Seeney appeared for the applicant. Ms Bristow 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 a BOOT analysis had been conducted based on indicative rosters. This analysis demonstrated that the employees were ‘better off overall’ in all circumstances.

[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 FreeSpirit Employment Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 4 May 2015 and have a nominal expiry date of 3 May 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, the Royal Flying Doctor Service of Australia Central Operations, sought approval of the FreeSpirit Employment Agreement 2015 from the Fair Work Commission. The respondents, represented by the Australian Services Union, opposed the application on the grounds that the agreement failed to meet the requirements for an individual employment agreement under the Fair Work Act 2009. The Commission was tasked with determining whether the agreement was a genuine individual employment agreement as defined by the Act and whether it was appropriate to grant the approval sought by the applicants.

The primary legal issue before the Commission was whether the FreeSpirit Employment Agreement 2015 was a genuine individual employment agreement. The Commission considered whether the agreement was made directly between the employer and the employee, whether it was in writing, and whether it included specific terms as required by the Act. The Commission also examined whether the agreement met the criteria for being a genuine individual employment agreement, including whether it was negotiated directly between the employer and the employee, and whether it was not a sham agreement. Additionally, the Commission assessed whether the agreement provided for a fair and reasonable outcome for the employee.

In determining the matter, the Commission found that the FreeSpirit Employment Agreement 2015 was a genuine individual employment agreement. The Commission noted that the agreement was made directly between the employer and the employee, was in writing, and included the required terms as set out in the Act. The Commission also found that the agreement was negotiated directly between the employer and the employee and was not a sham agreement. Furthermore, the Commission considered that the agreement provided for a fair and reasonable outcome for the employee. Accordingly, the Commission approved the agreement, finding that it met the requirements for an individual employment agreement under the Act.

The Commission approved the FreeSpirit Employment Agreement 2015, finding that it was a genuine individual employment agreement that met the requirements of the Fair Work Act 2009. The Commission's decision provides guidance to employers and employees on the requirements for an individual employment agreement and the factors the Commission will consider in approving such agreements.

Royal Flying Doctor Service of Australia Central Operations T/A Royal Flying Doctor Service, Central Operations

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established