Shortcorp Management Pty Ltd

[2013] FWCA 2880

[2013] FWCA 2880

FAIR WORK COMMISSION

DECISION

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

Shortcorp Management Pty Ltd
(AG2013/1055)

SHORTCORP MANAGEMENT PTY LTD ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 MAY 2013

Application for approval of the Shortcorp Management Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Shortcorp Management 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 Shortcorp Management Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 119 employees (115 of whom are casual employees) who are employed at the applicant’s three hotels: Hotel Australian The Rocks, the Glenmore Hotel (both in The Rocks, New South Wales) and Scubar Downunder (in Haymarket, New South Wales). The Agreement is expressed to cover hospitality employees, restaurant employees and warehouse employees. It does not cover employees of the applicant who work in operationally distinct areas, including, for example, Human Resources staff. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 20 March 2013, and voting for the Agreement’s approval took place on Friday 19 April 2013. Friday is significant in that that is the day when it might be expected the majority of employees would be rostered on. The time limits under s 181(2) of the Act are thereby satisfied. In a voting process that involved ballot boxes being left at each of the venues on the set date notified to the employees, 69 of the 76 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 2 May 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr T Crowe, Head of Finance and Operations, identified the following Modern Awards and Pre-reform awards (NAPSAs) as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

● Hospitality Industry (General) Award 2010 [MA000009];
● Restaurant Industry Award 2010 [MA000119];
● Storage Services and Wholesale Award 2010 [MA000084];
● Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998, The [AP783479];
● Liquor and Accommodation Industry - Hotels, Resorts and Gaming (Managerial) Staff) Award 2003 [AP821899];
● Restaurants, &C., Employees (State) Award [AN120468];
● Warehouse Employees - General (State) Award [AN120633];
● Training Wage (State) Award 2002 [AN120588]

[4] Mr Crowe said that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of certain allowances that are not relevant to the business of the employer, such as allowances for airport catering employees, motel employees and vehicle allowance. However the Agreement also provides for a number of terms and conditions that are more beneficial than, or in excess of, those under the reference instruments, including higher ‘loaded’ Monday-Saturday rates of pay that have been calculated to take into account laundry allowance, annual leave loading, and late night, early morning and Saturday penalty rates. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 6 respectively, and a disputes resolution procedure clause 5 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 9 May 2013, Ms A Kaye, Solicitor and Ms S Garland, Solicitor,appeared for the applicant. Ms Kaye 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 the Agreement was expressed to cover warehouse employees because the applicant had an intention of expanding their business into wine storage and distribution. She also submitted that the base rates of pay had been calculated with reference to indicative rosters provided by the employer, which disclosed that employees work a mix of weekday and weekend rosters. Ms Kaye provided signed undertakings to remedy a drafting error in Part 4 of Schedule A of the Agreement (being a table of trainee rates) and to clarify that the base rates of pay are to be adjusted with reference to the Commission’s Annual Minimum Wage Review decision throughout the nominal term of the Agreement. Having received these undertakings, I am satisfied that the Agreement passes the BOOT. Pursuant to s 191(1) of the Act, the undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement and marked as ‘Annexure A’.

[6] 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, 188, 190 and 191 in so far as relevant to this application, have been met. I note that the applicable rates to be paid under the Agreement will commence on the approval of the Agreement. Accordingly, I approve a single enterprise agreement known as the Shortcorp Management Pty Ltd Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 16 May 2013 and have a nominal expiry date of 15 May 2017.

DEPUTY PRESIDENT

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