Star & Garter Pty Ltd t/as Star & Garter and Hannans Hotel

[2013] FWCA 7666

[2013] FWCA 7666

FAIR WORK COMMISSION

DECISION

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

Star & Garter Pty Ltd t/as Star & Garter and Hannans Hotel
(AG2013/2560)

THE STAR & GARTER AND HANNANS HOTEL ENTERPRISE AGREEMENT

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 3 OCTOBER 2013

The Star & Garter and Hannans Hotel Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Star & Garter Pty Ltd t/as Star & Garter and Hannans Hotel (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Star & Garter and Hannans Hotel Enterprise Agreement (the ‘Agreement’). The Agreement is to cover 45 employees who are employed at the applicant’s hotel in Kalgoorlie, Western Australia.

[2] The employees were last notified of their representational rights on 26 June 2013, and voting for the Agreement’s approval took place between 21-22 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 11 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 August 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms G Howe, HR Officer/Bargaining Representative identified the Hospitality Industry (General) Award 2010 [MA000009], the Hotel and Tavern Workers’ Award [AN160174] and the Clerks’ (Hotels, Motels and Clubs) Award 1979 [AN160075] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Howe said that the Agreement did provide for some terms and conditions which are less beneficial than provided for in the reference instruments, including the removal of a number of allowances, along with annual leave loading, penalty rates for overtime and work performed and weekends and public holidays. However, the Agreement provides for a number of terms conditions that are more beneficial than, or in excess of those under the Modern Award, including time off in lieu for salary employees, the provision of a meal and beverage where an employee works more than 6 hours in a shift, rates of pay which are 25% higher for permanent employees and 45% higher for casual employees. Personal and annual leave are paid at the ‘loaded’ flat hourly rate. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 9 and 11 respectively, and a disputes resolution procedure at clause 10 provides for mediation, conciliation and arbitration by the Western Australian Industrial Relations Commission.

[4] At a hearing of the application on 1 October 2013, Ms G Howe appeared for the applicant. Ms Howe 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. She explained that because the hotel was largely owner-operated, there was very little requirement to work on weekends. She added that the employees were already being paid the rates applicable under the Agreement.

[5] Having heard the applicant’s 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 The Star & Garter and Hannans Hotel Enterprise Agreement. Pursuant to s 54 of the Act, the Agreement shall operate from 8 October 2013 and have a nominal expiry date of 7 October 2017.

DEPUTY PRESIDENT

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