St Johns Park Bowling Club Ltd

[2015] FWCA 889

[2015] FWCA 889

FAIR WORK COMMISSION

DECISION

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

St Johns Park Bowling Club Ltd
(AG2015/1718)

ST JOHNS PARK BOWLING CLUB EMPLOYEE AGREEMENT 2015 - 2019

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 5 FEBRUARY 2015

Application for approval of the St Johns Park Bowling Club Ltd Enterprise Agreement 2015-2019.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by St Johns Park Bowling 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 St Johns Park Bowling Club Employee Agreement 2015 - 2019 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 195 employees, other than Club Managers and those employed under an apprenticeship or indentured traineeship, who are employed at the applicant’s Club in St Johns Park, New South Wales. 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 23 September 2014 and voting for the Agreement’s approval took place between 9 and 12 January 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 118 of the 147 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 January 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Marsh, Group Chief Executive Officer, identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

• Registered and Licensed Clubs Award 2010 [MA000058];



• Club Employees (State) Award 2006 [AN120136];



• Club Managers (State) Award 2006 [AN120138]; and



• Bowling and Golf Clubs Employees State Award 2006 [AN120079];

[4] Mr Marshsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including less generous higher duties entitlements, reduced late and early work penalty rates and less generous overtime entitlements for work performed Monday to Friday. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher penalty rates for overtime performed on weekends, enhanced compassionate leave entitlements, improved parental leave entitlements, paid study leave for approved courses and the recognition of an employee’s birthday as a public holiday. Rates of pay are to be increased each year by 2.5% or in accordance with the Commission’s Minimum Wage Review decisions, whichever is higher, up to a maximum of 3%. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 59 and 16 respectively, and a disputes resolution procedure at clause 49 provides for conciliation and arbitration by the Commission.

[5] At a hearing of the application on 3 February 2015, Ms H Carayannis of the Registered and Licensed Clubs Association of New South Wales,appeared with Ms Y Wang for the applicant and Mr C Acev for the Union. The Union had filed a Declaration in relation to the application (Form 18) giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. However, the declaration also set out that the Union did not support the approval of the Agreement as it had concerns as to shiftworkers’ annual leave entitlements. Mr Acev put that the Union interpreted cl 30.5 of the Agreement as setting out that an employee must work 30 or more Sundays and then additional public holidays in order to be eligible to accrue an extra week’s annual leave. Ms Carayannis put that it was intended that employees should work on 30 Sundays and public holidays in total in order to be eligible to accrue a further one week of annual leave. Mr Acev indicated that this assurance would be sufficient to address the Union’s concerns. In my view, Ms Carayannis’ interpretation of cl 30.5 is correct. Ms Carayannis 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.

[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 St Johns Park Bowling Club Ltd Enterprise Agreement 2015 - 2019.Pursuant to s 54 of the Act, the Agreement shall operate from 10 February 2015 and have a nominal expiry date of 9 February 2019.

DEPUTY PRESIDENT

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