DECISION

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

Scaglione Holdings Pty Ltd t/as Clare Hotel
(AG2014/10001)

CLARE HOTEL (CASUAL EMPLOYEES) ENTERPRISE AGREEMENT 2014-2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 5 DECEMBER 2014

Application for approval of the Clare Hotel (Casual Employees) Enterprise Agreement 2014-2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Scaglione Holdings Pty Ltd t/as Clare Hotel (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Clare Hotel (Casual Employees) Enterprise Agreement 2014-2016 (the ‘Agreement’). The Agreement is to cover 19 employees who are employed at the applicant’s hotel in the Clare Valley, South Australia.

[2] The employees were last notified of their representational rights on 15 October 2014, and voting for the Agreement’s approval took place between 16 and 18 November 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 10 of the 12 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 November 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mrs D Scaglione, Hotel Licensee, identified the Hospitality Industry (General) Award 2010 [MA000009], the Hotels, Clubs, Etc., Award [AN1500066] and the Clerks (Clubs, Hotels and Motels) Award 1979 [AN160075] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Scaglionesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including reduced penalty rates for work performed on Sundays and Public Holidays. However the Agreement provides that all employees receive a casual loading of 50% and a paid break of 15 minutes if they work a shift longer than 8 hours. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 12 and 13 respectively, and a disputes resolution procedure at clause 14 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 28 November 2014, Mr O Webb and Mr T Evans of the Australian Hotels Associationappeared with Mrs D Scaglione for the applicant. Mr Webb 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. He confirmed that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[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 Clare Hotel (Casual Employees) Enterprise Agreement 2014-2016.Pursuant to s 54 of the Act, the Agreement shall operate from 5 December 2014 and have a nominal expiry date of 31 December 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Scaglione Holdings Pty Ltd, trading as the Clare Hotel, which applied for approval of the Clare Hotel (Casual Employees) Enterprise Agreement 2014-2016. The application was made under the Fair Work Act 2009, and the dispute centred around the fairness and compliance of the proposed agreement with the statutory requirements for enterprise agreements. The Commission was tasked with determining whether the agreement met the necessary conditions for approval, including provisions for casual employees' entitlements and the process for negotiating and finalising the agreement.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated and whether it complied with the various provisions of the Fair Work Act, including those relating to the good faith negotiation, coverage, and content of the agreement. In particular, the Commission had to consider if the agreement appropriately addressed the entitlements of casual employees, such as penalty rates and leave provisions, and whether the process followed in reaching the agreement was fair and transparent. Additionally, the Commission examined whether any provisions in the agreement unfairly disadvantaged employees or were contrary to public policy.

In delivering its decision, the Commission found that the agreement had been genuinely negotiated in good faith and that it complied with all relevant statutory requirements. The Commission was satisfied that the process followed in negotiating the agreement was transparent and that all parties had an opportunity to participate and be heard. The agreement was deemed to cover all casual employees at the Clare Hotel and provided for appropriate entitlements, including penalty rates and leave provisions. The Commission concluded that the agreement did not unfairly disadvantage employees and was in accordance with public policy. Therefore, the Commission approved the Clare Hotel (Casual Employees) Enterprise Agreement 2014-2016, recognising it as a lawful and fair agreement.

The final orders of the Commission were that the Clare Hotel (Casual Employees) Enterprise Agreement 2014-2016 be approved under section 173 of the Fair Work Act. The agreement was to be registered with the Commission and would come into effect from the date of approval. The decision provided clarity and certainty for the parties involved, ensuring that the agreement would operate as intended for the duration specified.

Scaglione Holdings Pty Ltd t/as Clare Hotel

DECISION

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Legal Principle Established