Silky Oaks Lodge

[2014] FWCA 5241

[2014] FWCA 5241

FAIR WORK COMMISSION

DECISION

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

Silky Oaks Lodge
(AG2014/6760)

SILKY OAKS LODGE EBA 2014

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 AUGUST 2014

Application for approval of the Silky Oaks Lodge EBA 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Silky Oaks Lodge (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Silky Oaks Lodge EBA 2014 (the ‘Agreement’). The Agreement is to cover 38 employees who are employed at the applicant’s Resort Hotel in Mossman, North Queensland. 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 11 March 2014, and voting for the Agreement’s approval commenced on 4 June 2014 and concluded on 2 July 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a confidential vote conducted in person with each individual employee by the HR Manager, 23 of 27 employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 July 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms Alison Fapani, HR Manager,identified the Hair and Beauty Industry Award 2010 [MA000005] and Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Fapanisaid that the Agreement does provide for terms and conditions that are less beneficial than those under the reference instruments, including rates which do not include weekend penalties, allowances or public holiday rates. However the allowances and penalty rates have been loaded into base rates of pay which are 15% higher than the Award. The Agreement also provides the ability to work voluntary additional hours. Rates of pay are to be adjusted by 2.5% on the 1 July anniversary during the nominal term of the Agreement. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 1 August 2014, Ms P Kitto of HR Dynamicsappeared for the applicant. Ms Kitto 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. I expressed some concern at the means of obtaining the employee’s approval of the Agreement (see para 2 above). However, given that 4 of the employees did not support the Agreement and after hearing Ms Kitto’s explanation of the process, I am satisfied that the employees genuinely supported the approval of the Agreement.

[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 Silky Oaks Lodge EBA 2014. Pursuant to s 54 of the Act, the Agreement shall operate from 8 August 2014 and have a nominal expiry date of 30 June 2017.

DEPUTY PRESIDENT

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