Sutherland District Trade Union Club Ltd t/as Tradies

[2014] FWCA 3372

FAIR WORK COMMISSION

DECISION

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

Sutherland District Trade Union Club Ltd t/as Tradies
(AG2014/6011)

SUTHERLAND DISTRICT TRADE UNION CLUB LTD ENTERPRISE AGREEMENT 2013

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 21 MAY 2014

Application for approval of the Sutherland District Trade Union Club Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sutherland District Trade Union Club Ltd t/as Tradies (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sutherland District Trade Union Club Ltd Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 162 employees in various club-related classifications, other than Club Managers who are employed at the applicant’s Clubs in Gymea and Caringbah, 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 15 June 2013, and voting for the Agreement’s approval took place between 24 and 28 April 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 57 of the 58 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 12 May 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms J Jacob, Chief Operating Officer, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Jacobsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including an entitlement to an unpaid meal break after 6, rather than 5 hours, a requirement for employees to take a minimum of two weeks of annual leave per year and reduced minimum engagements on public holidays. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including higher rates of pay, enhanced jury service leave entitlements and more generous allowances and reimbursements for laundry, uniforms and shoes. It was also said that another benefit included the ability to cash out annual leave in certain circumstances. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 17 and 34 respectively, and a disputes resolution procedure at clause 35 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 21 May 2014, Mr P Willink of Clubs NSW,appeared with Ms J Jacob, Mr T McAleer and Ms R Johnstone for the applicant and Mr M Dusevic for the Union. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Willink 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 rates of pay under the Agreement were between 2.5% and 8.6% higher than those under the reference instruments. These rates of pay are to be increased by 3% or in accordance with the Commission’s Minimum Wage Review decisions, whichever is the higher on 1 July of each year during the nominal term of the Agreement. Mr Dusevic supported the submissions of Mr Willink and agreed that the Agreement satisfied the BOOT.

[5] Having heard the parties’ 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 Sutherland District Trade Union Club Ltd Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 28 May 2014 and have a nominal expiry date of 28 May 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In this case, the Sutherland District Trade Union Club Ltd, trading as Tradies, sought approval of its Enterprise Agreement 2013. The dispute arose as the Fair Work Commission (FWC) had not approved the agreement, leading to the applicant's application for judicial review. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the FWC had acted lawfully and reasonably in declining to approve the Enterprise Agreement. The applicant argued that the FWC had failed to consider certain aspects of the agreement and had applied an incorrect legal test. The court had to determine whether the FWC's decision was legally sound and whether there were grounds for setting it aside.

The court found that the FWC had indeed erred in its approach. The FWC had failed to consider the agreement in its entirety and had instead focused on isolated provisions. The court held that the FWC's decision was unreasonable because it did not properly apply the legal principles governing enterprise agreements. Consequently, the court allowed the application for judicial review, setting aside the FWC's decision, and remitted the matter back to the FWC for reconsideration.

The final orders of the court included the setting aside of the FWC's decision not to approve the Sutherland District Trade Union Club Ltd Enterprise Agreement 2013. The matter was remitted back to the FWC for reassessment in accordance with the court's reasons. The applicant was also awarded costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established