SkyCity Adelaide Pty Ltd T/A SkyCity Adelaide

[2021] FWCA 1843

[2021] FWCA 1843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SkyCity Adelaide Pty Ltd T/A SkyCity Adelaide
(AG2021/391)

SKYCITY ADELAIDE CASINO /UNITED WORKERS UNION ENTERPRISE AGREEMENT 2020

Hospitality industry
COMMISSIONER YILMAZ	MELBOURNE, 8 APRIL 2021

Application for approval of the SKYCITY Adelaide Casino /UNITED WORKERS UNION Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the SKYCITY Adelaide Casino /UNITED WORKERS UNION Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SkyCity Adelaide Pty Ltd T/A SkyCity Adelaide. The Agreement is a single enterprise agreement.

[2] 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.

[3] In assessing the Applicant’s Form F17 filed with this application, the Commission identified that the vote opened on 27 January 2020 and details of time and place the vote were communicated to employees two days prior, which gave rise to concerns that s.180 of the Act had not been complied with.

[4] This issue was raised with the parties to this application, and in response, the Applicant submitted that the timing of the vote was reasonable in the circumstances following consultation with the United Workers’ Union (UWU) to delay the vote as originally planned in December 2020 to January 2021. The intention of the delay was to provide access to the vote for a majority of employees once staff returned from Christmas and the completion of the expansion to the premises. On 20 January 2020, all employees were communicated with via SMS and access to the agreement was provided both electronically and in hard copy placed in staff areas. While the SMS did not provide time and date of the vote, it did ask staff to review the agreement over the 7-day access period. The Applicant submits that the delay in notification constitutes a minor procedural error of the type contemplated by s.188(2) of the Act and despite this error, the Agreement was genuinely agreed to by the relevant employees. The Applicant further submitted that the relevant employees were not prejudiced or disadvantaged by the delay in notification and the process undertaken with the consent of the UWU.

[5] In relation to the low voting turn-out, the Applicant submitted that the Agreement is substantially similar to the existing agreement, being the SkyCity Adelaide Casino/United Voice Enterprise Agreement 2017 and given that the Agreement is substantially similar and has a short period of operation with a nominal expiry date of 30 November 2021, employees demonstrated little interest in the new agreement, and this likely explains the low turn-out in voting.

[6] After receiving the Applicant’s submissions, my chambers wrote to the UWU seeking their view regarding whether this matter ought to be treated as a minor procedural or technical error for the purposes of section 188(2) of the Act. The UWU confirmed that they strongly agree with the Applicant’s submissions and that any deficiency in the notification of the time, date and method of the vote constitutes a minor procedural error for the purposes of s.188(2) of the Act. Furthermore, the UWU submitted that employees were informed that they were given 7 days’ notice that a vote would be taking place and that this was the essential information that employees needed to be aware of. In addition, the UWU indicated that it had meetings with all its members (which made up the majority of the workforce) where the 7-day access period and the method of the vote was explained. All 862 employees that worked over the access period were offered a voting slip on their shift. As a result, the UWU contend that employees were able to attend and participate in the voting process, if they wished to do so. Further, the manner of the vote was consistent with the process adopted for previous agreements.

[7] The UWU submits that the reason for the low voting turn-out was because the Agreement was uncontroversial and neither the Applicant nor the UWU actively campaigned a yes or no vote. The UWU say that this is because the Agreement is essentially a rollover agreement with a pay increase that expires after one year, and that the Agreement was made to provide employees with a pay rise during the COVID-19 pandemic with a view to ultimately recommencing bargaining when the agreement expires later this year.

[8] In addition to the submissions of the parties, I also note the voting period was open for 9 days and the steps taken to notify relevant employees of the vote, and steps taken to ensure participation in the vote did not disadvantage employees. I accept the submissions made by the Applicant and the UWU and consider that non-compliance with s.180 of the Act in these circumstances constitutes a minor procedural error for the purposes of s.188(2) of the Act.

[9] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[10] The United Workers’ Union 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) I note that the Agreement covers the organisation.

[11] The Agreement is approved and in accordance with s.54, will operate from 15 April 2021. The nominal expiry date of the Agreement is 30 September 2021.

COMMISSIONER

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Annexure A