Starhill Hotel (Sydney) Pty Ltd t/as Sydney Harbour Marriott

[2016] FWCA 1062

[2016] FWCA 1062

FAIR WORK COMMISSION

DECISION

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

Starhill Hotel (Sydney) Pty Ltd t/as Sydney Harbour Marriott
(AG2015/7765)

SYDNEY HARBOUR MARRIOTT ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 17 FEBRUARY 2016

Application for approval of the Sydney Harbour Marriott Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Starhill Hotel (Sydney) Pty Ltd t/as Sydney Harbour Marriott (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sydney Harbour Marriott Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 228 employees who are employed in hospitality roles at a hotel operated by the applicant, other than those employed in managerial roles, in in Sydney, 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 7 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, 156 of the 171 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 December 2015, 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 [MA0000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Shesaid 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, Solicitorappeared 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’.

[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 Sydney Harbour Marriott Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from the first full pay period on 18 February 2016 and have a nominal expiry date of 17 February 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE417877  PR577158>