Sunshine Coast Hotels Pty Ltd

[2013] FWCA 8357

[2013] FWCA 8357

FAIR WORK COMMISSION

DECISION

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

Sunshine Coast Hotels Pty Ltd
(AG2013/9782)

SUNSHINE COAST HOTELS PTY LTD ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 OCTOBER 2013

Application for approval of the Sunshine Coast Hotels Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sunshine Coast Hotels 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 Sunshine Coast Hotels Pty Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 12 employees who are engaged at the applicant’s hotel (Bellvista Tavern) in Caloundra, Queensland. 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 29 August 2013, and voting for the Agreement’s approval took place on 4 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 11 of the 12 employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr S Armstrong, Managing Director, identified the Hospitality Industry (General) Award 2010 [MA000009], the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479] and the Liquor and Accommodation Industry - Hotels, Resorts and Gaming - (Managerial Staff) - Award 2003 [AP821899] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Armstrongsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of a number of allowances and penalty rates for work performed on weekends, public holidays and other unsociable hours. However, the lesser benefits have been loaded into higher rates of pay. Rates of pay are to be increased by 2.5% on 1 July 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.5 provides for conciliation by the Commission.

[4] At a hearing of the application on 14 October 2013, Mr D D’Arcy, Solicitor,appeared with Mr S Armstrong for the applicant. Mr D’Arcy 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 the business of the employer was a small family orientated hotel. The applicant had undertaken a spreadsheet analysis of the rates of pay under the Agreement in comparison to those under the Modern Award, taking into account the current rosters. This resulted in the conclusion that no employee would be worse off overall when compared to the Modern Award.

[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 Sunshine Coast Hotels Pty Ltd Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 29 October 2013 and have a nominal expiry date of 30 June 2015.

DEPUTY PRESIDENT

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