Starhill Hotel (Melbourne) Pty Ltd

[2016] FWCA 1050

[2016] FWCA 1050

DECISION

Fair Work Act 2009

s 185 - Application for approval of a single-enterprise agreement

Starhill Hotel (Melbourne) Pty Ltd

(AG2015/7768)

MELBOURNE MARRIOTT HOTEL ENTERPRISE AGREEMENT 2015

Hospitality industry

DEPUTY PRESIDENT SAMS SYDNEY, 17 FEBRUARY 2016

Application for approval of the Melbourne Marriott Hotel Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed

by Starhill Hotel (Melbourne) Pty Ltd (the ‘applicant’) which seeks the approval of the Fair

Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the

Melbourne Marriott Hotel Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is

to cover 128 employees who are employed in hospitality roles at a hotel operated by the

applicant, other than those employed in managerial roles, in Melbourne, Victoria. 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 6 November 2015

and voting for the Agreement’s approval took place on 4 and 5 December 2015. The time

limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 96 of the 102

employees who cast a valid vote, agreed to approve the Agreement. The application for

approval of the Agreement was lodged on 17 December 2016, thereby satisfying s 185(3) of

the Act.

[3]        In the Employer’s Declaration in support of the application (Form F17) Ms N

Rasheed, Area Director Human Resources, identified the Hospitality Industry (General)

Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better

[2016] FWCA 1050

Off Overall Test (the ‘BOOT’). She said that the Agreement does provide for some terms and

conditions that are less beneficial than those under the Modern Award, including shorter

minimum engagements, increased flexibility in the spread of hours and a change to rosters at

four days’ notice. However, the Agreement provides for higher rates of pay, enhanced higher

duties allowances and an apprentice bonus. I am satisfied that the Agreement passes the

BOOT. The Agreement provides for the mandatory flexibility and consultation terms at

clauses 1.3 and 6.5 respectively, and a disputes resolution procedure at clause 6.1 provides for

conciliation by the Commission.

[4]        At a hearing of the application on 11 February 2016, Mr M Norman, Solicitor and Mr

M Cooper, Solicitor appeared with Ms N Rasheed for the applicant. Mr Norman 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 that rates of pay are to be at least 3% higher than those under the

Award from commencement of the Agreement’s operation and 1 July 2016, 2.5% higher on 1

July 2016 and 2% higher on 1 July 2017. Mr Norman also provided an undertaking designed

to ensure that employees who have been employed full time for six months or part time for

twelve months immediately prior to the commencement of an adult apprenticeship will not be

subject to a reduction in their ordinary hourly rates of pay, although he said that the applicant

employed no adult apprentices at this time. Pursuant to s 191(1) of the Act, the undertaking is

taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement

and marked as ‘Annexure A’.

[2016] FWCA 1050

[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, 188, 190 and 191 in so far as relevant

to this application, have been met. Accordingly, I approve a single enterprise agreement

known as the Melbourne Marriott Hotel Enterprise Agreement 2015. Pursuant to s 54 of the

Act, the Agreement shall operate from the first full pay period after 18 February 2016 and

have a nominal expiry date of 17 February 2020.

DEPUTY PRESIDENT

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