South Sydney Junior Rugby League Club Ltd

[2016] FWCA 7031

[2016] FWCA 7031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

South Sydney Junior Rugby League Club Ltd
(AG2016/5787)

SOUTH SYDNEY JUNIOR RUGBY LEAGUE CLUB EMPLOYEES ENTERPRISE AGREEMENT 2015-2019

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 30 SEPTEMBER 2016

Approval of the South Sydney Junior Rugby League Club Employees Enterprise Agreement 2015-2019.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by South Sydney Junior Rugby League Club Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the South Sydney Junior Rugby League Club Employees Enterprise Agreement 2015-2019 (the ‘Agreement’). The Agreement was negotiated with the Liquor and Hospitality Division of United Voice (the ‘Union’) and is to cover 278 employees who are employed to perform duties in the applicant’s bar, gaming, reception, functions, food service, catering, clerical, administration, maintenance, cellar, grounds, fitness and related operations. The Agreement does not cover managers, supervisors, employees of the South Sydney Junior Rugby League Club – Junior League, indentured trainees registered with the NSW Department of Education and Training or apprentices. 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 last Notice of Employee Representational Rights (NERR) was issued on 7 July 2016, and voting for the Agreement’s approval took place between 5 and 11 September 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 93 of the 108 employees who voted, agreed to approve the Agreement. I note that there were two earlier ballots of employees; the first resulted in a vote of 88 employees in favour of the Agreement and one against. Due to an irregularity in the NERR, a second, unsuccessful vote was conducted (64 against, 21 in favour), and the third vote is the one relevant to this application. The application for approval of the Agreement was lodged on 15 September 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr G Knight, Chief Executive Officer, identified the Registered and Licensed Clubs Award 2010 [MA000058] (the ‘Award’) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Knight’s Declaration indicates that over 20 terms and conditions in the Agreement are more beneficial than the corresponding provisions in the Award, including longer minimum engagement periods, higher overtime rates on weekends, the ability to cash out personal/carer’s leave and a paid day off on an employee’s birthday for permanent employees with more than 12 months’ service. Mr Knight also notes that while the Agreement does not provide for early/late work penalties as are in the Award, these penalties are absorbed into the Agreement’s base rates of pay, which are higher than those in the Award. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at cls 6 and 36 respectively, and a dispute resolution procedure at cl 33 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 28 September 2016, Ms H Carayannis from the Registered Clubs Association of New South Wales appeared for the applicant, with Mr G Knight, Chief Executive Officer of the applicant and Mr P White, Payroll Manager. Ms Carayannis submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. In particular, she highlighted that the Agreement provided for a guaranteed roster four weeks in advance for full time employees and two weeks in advance for part time and casual employees. Ms Carayannis said that the terms and conditions in the Agreement were the same when the Agreement was put to each of the three ballots for the employees’ approval.

[5] Mr C Acev appeared for the Union. The Union had filed a Declaration in relation to the application (Form 18) opposing the approval of the Agreement, while also giving notice that it wishes to be covered by the Agreement (s 183). Mr Acev indicated that the Union’s opposition was based on the fact that the Agreement clause addressing consultation in relation to rostering (cl 36) was not identical to the corresponding clause in the Award (cl 8.2). However, when pressed, heconceded that this did not necessarily mean that the clause failed to comply with s 205 of the Act. To avoid doubt, I am satisfied that the clause does so comply. Mr Acev also acknowledged that a majority of employees who voted in this third ballot were in favour of approving the Agreement and that the Agreement was more beneficial to employees than the Award in a number of respects. Thus, while I note the Union’s concerns, I do not consider that there are any grounds for refusing to approve the Agreement. For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[6] Having heard the parties’ 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 South Sydney Junior Rugby League Club Employees Enterprise Agreement 2015-2019.Pursuant to s 54 of the Act, the Agreement shall operate from 5 October 2016 and have a nominal expiry date of 28 September 2020.

DEPUTY PRESIDENT

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