SkyCity Adelaide Pty Ltd T/A SkyCity Adelaide

[2022] FWCA 3048

[2022] FWCA 3048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SkyCity Adelaide Pty Ltd T/A SkyCity Adelaide

(AG2022/3409)

SKYCITY Adelaide Casino /UNITED WORKERS UNION Enterprise Agreement 2021

Hospitality industry
COMMISSIONER PLATT	ADELAIDE, 2 SEPTEMBER 2022

Application for approval of the SKYCITY Adelaide Casino /UNITED WORKERS UNION Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the SKYCITY Adelaide Casino /UNITED WORKERS UNION Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by SkyCity Adelaide Pty Ltd T/A SkyCity Adelaide (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 August 2022.

1. On 24 August 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. It is noted that whilst the Agreement and the form F17 indicate that the Joinery and Building Trades Award (JBT Award), Hair and Beauty Industry Award 2020 (HBI Award) and the Hospitality Industry (General Award) 2020 (HIG Award) cover employees within the scope of the Agreement, and each Award is incorporated, only the HIG Award was provided to employees during the access period. The Applicant made a submission that I should exercise my discretion to approve the Agreement despite what they say was a minor procedural or technical error. The Applicant’s submission was that only 11 out of 1041 relevant employees were covered by the HBI or JBT Awards, and those employees were represented by the United Workers’ Union (UWU) and had the opportunity to speak to their representatives about the relevant Awards. In addition, all employees were provided with a thorough comparison between the Agreement and the HBI and JBT Awards.

1. The UWU, a bargaining representative for the Agreement, supported the Applicant’s submissions.

1. In respect of the failure to provide the relevant employees with a copy of the HBI Award and JBT Award, I do not believe that it had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There are five National Employment Standards (NES) issues that require comment:

·   Clauses 33.5 and 33.6 of the Agreement provide that the employer has the right to deduct from any outstanding remuneration the cost of replacement of property should an employee abandon their employment, and the employer will be entitled to withhold any payment of wages and/or notice due to team members on the termination of their employment pending the return to the employer of all property. These clauses could be inconsistent with the NES to the extent they allow the employer to make deductions from NES entitlements (e.g. accrued annual leave).

·   Clause 40.1.1 of the Agreement provides that annual leave is accrued for each completed four-week period of continuous service with an employer. This is inconsistent with s.87(2) of the Act, in which annual leave accrues progressively.

·   Clause 41.6.1 of the Agreement provides that personal/carer’s leave is accrued at a rate of 1/26^th of the number of nominal hours worked by the permanent team member during each four-week period. This is inconsistent with s.96(2) of the Act in which personal/carer’s leave accrues progressively.

·   Clause 44.5 of the Agreement provides for two paid days of family violence leave but does not provide five days of unpaid leave consistent with the NES.

·   Clause 45.6 of the Agreement contains an exhaustive list of public holidays that employees are entitled to but does not provide an entitlement to any other day or part-day declared or prescribed to be observed within a State or Territory, as provided by s.115(b) of the Act.

1. Clause 5.2.a. of the Agreement acts as an effective NES precedence clause, in that it states that where the NES is more beneficial to an employee, the NES will prevail over the Agreement to the extent that the NES provides a more favourable outcome to the employee. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 30 August 2022. The undertaking deals with the following topics:

·  The definition of “Awards” in clause 5.1.a is amended to include the Hair and Beauty Industry Award 2020.

·  The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

·  A part-time employee who would otherwise have been required to work on a public holiday but who is not required to work because it is a public holiday will be paid the greater of six hours pay at ordinary rates, or the average daily hours worked on the day on which the public holiday falls over the previous two roster cycles.

·  Clauses 33.5, 33.6, 40.1.1 and 41.6.1 will not operate to the extent that they are less beneficial or inconsistent with the NES.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The United Workers’ Union (UWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

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

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 September 2024.

COMMISSIONER

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