Sunnybank Rugby Union Club Inc

[2014] FWCA 6796

[2014] FWCA 6796

FAIR WORK COMMISSION

DECISION

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

Sunnybank Rugby Union Club Inc
(AG2014/8891)

SUNNYBANK COMMUNITY AND SPORTS CLUB EMPLOYEE COLLECTIVE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 30 SEPTEMBER 2014

Application for approval of the Sunnybank Community and Sports Club Employee Collective Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sunnybank Rugby Union Club Inc (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sunnybank Community and Sports Club Employee Collective Agreement 2014 (the ‘Agreement’). The Agreement is to cover 91 employees who are employed at the applicant’s Club in Sunnybank, Queensland.

[2] The employees were last notified of their representational rights on 29 May 2014, and voting for the Agreement’s approval took place between 26 and 29 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 52 of the 54 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 5 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Cates, Human Resources Manager, identified the Registered and Licensed Clubs Award 2010[MA000058], the Greenkeeping Industry Award - State 2002 [AN140137]and the Clubs Etc. Employees’ Award - South East Queensland 2003 [AN140073] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Catessaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. However, this is not strictly true, as the Agreement does not provide for penalty rates on weekends and public holidays or for overtime, rates, both of which have been ‘loaded’ into higher rates of pay. It was also said that another benefit included the ability to cash in annual and long service leave in certain circumstances. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility term at cl 4.1.2, but it does not meet the requirements of s 203 of the Act and, pursuant to s 202(4), the model term is taken to apply. The Agreement provides for a consultation term at clause 6.6.3 and a disputes resolution procedure at clause 6.6.1 provides for conciliation and arbitration by the Commission (erroneously referred to as ‘Fair Work Australia’).

[4] At a hearing of the application on 26 September 2014, Mr M Cates appeared for the applicant. Mr Cates 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 clarified that there was a typographical error in cl 5.1.5 and that the last sentence should read: ‘The Company can require an Employee to take annual leave if the Employee has accrued at least six (6) weeks annual leave entitlement.’ He also said that rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions.

[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 Sunnybank Community and Sports Club Employee Collective Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 3 October 2014 and have a nominal expiry date of 2 October 2018.

DEPUTY PRESIDENT

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