St Marys Rugby League Club Ltd

[2014] FWCA 619

[2014] FWCA 619

FAIR WORK COMMISSION

DECISION

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

St Marys Rugby League Club Ltd
(AG2013/12888)

ST MARYS RUGBY LEAGUE CLUB LTD EMPLOYEES ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 24 JANUARY 2014

Application for approval of the St Marys Rugby League Club Ltd Employees Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by St Marys 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 St Marys Rugby League Club Ltd Employees Enterprise Agreement (the ‘Agreement’). The Agreement was negotiated with United Voice - Liquor and Hospitality Division (the ‘Union’). The Agreement is to cover 133 employees who are employed at the applicant’s Club in St Marys, New South Wales and who are not Club Managers or employed under an apprenticeship or traineeship. 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 25 July 2013, and voting for the Agreement’s approval took place on 10 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 22 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 January 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Zeglis, Human Resources Manager identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Zeglissaid that the Agreement did provide for some terms and conditions that are less beneficial than those under the reference instruments, including the lack of provision for a casual conversion clause, the removal of penalty rates for work performed after 7pm and before 7am and no provision for payment for the cost of transport home where an employee works so late or so early that it is unreasonable for them to travel by their normal method of transport. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including longer minimum engagements for full time and part time employees, including higher rates of pay, a paid break of ten minutes where an employee works a shift of eight hours, enhanced overtime rates for casual employees and a more beneficial first aid allowance. It was also said that other benefits included the ability to cash out annual leave and personal leave in certain circumstances. Rates of pay are to be increased by 2.5% on 1 July 2014, 1 July 2015 and 1 July 2016. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 39 respectively, and a disputes resolution procedure at clause 37 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 21 January 2014, Mr M Ushakoff of ClubsNSW,appeared with Mr P Zeglis for the applicant and Mr M Dusevic 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 stated that the Union did not support the approval of the Agreement. Mr Ushakoff 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. He explained by reference to a later provided comparison document that wages are 7% higher than those under the reference instruments across 16 classifications and observed that employees were entitled to bonuses if certain performance based criteria are met. Mr Dusevic said that the Union has some concerns as to the adequacy of the 2.5% wage increases, loss of meal allowance and the removal of penalty rates for work performed from 10pm to midnight. However, Mr Zeglis submitted that calculations demonstrated that the base rate of pay took into account wages for the full week and that employees were on rotating rosters.

[5] 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 Marys Rugby League Club Ltd Employees Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 28 January 2014 and have a nominal expiry date of 28 January 2017.

DEPUTY PRESIDENT

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