Sanctuary Lakes Resort Services Limited

[2022] FWCA 4129

[2022] FWCA 4129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sanctuary Lakes Resort Services Limited

(AG2022/4485)

Sanctuary Lakes Resort Services Limited Enterprise Agreement 2021

Real estate industry
COMMISSIONER LEE	MELBOURNE, 29 NOVEMBER 2022

Application for approval of the Sanctuary Lakes Resort Services Limited Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the Sanctuary Lakes Resort Services Limited Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sanctuary Lakes Resort Services Limited. The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·  Clause 34.2 – Substituting Public Holidays

·  Clause 35.2 – Notice of termination by Employee

However, noting the written undertakings provided by the employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Employer states in Q20 of the Form F17 that they notified the relevant employees of the voting details on 3 October 2022. Question 25 on the Form F17 indicates that the date that voting for the Agreement commenced was 10 October 2022. Therefore the 7-day access period started on the first full day after 10 October 2022. As such, the employer did not notify the relevant employees of the voting details by the start of the access period in accordance with s.180(3) of the Act.

1. The Notice of Employee Representational Rights (NERR) states that the Agreement is proposed to cover employees that are employed in the following categories:

   ·  Resort Maintenance

   ·  Lake Maintenance

   ·  Irrigation

However, clause 5.1.2(d) of the Agreement states the Agreement also covers employees employed in the following category:

·  Infrastructure Maintenance

1. In the circumstances and having regard to the submissions of the employer and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] I am satisfied that the issues raised in paragraphs 7 and 8 constitute a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2022. The nominal expiry date of the Agreement is 6 December 2025.

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318.

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