The Australian Club Inc.

[2014] FWCA 617

[2014] FWCA 617

FAIR WORK COMMISSION

DECISION

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

The Australian Club Inc.
(AG2013/12858)

THE AUSTRALIAN CLUB ENTERPRISE AGREEMENT 2013 - KITCHEN EMPLOYEES

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 28 JANUARY 2014

Application for approval of The Australian Club Enterprise Agreement 2013 - Kitchen Employees.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Australian 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 Australian Club Enterprise Agreement 2013 - Kitchen Employees (the ‘Agreement’). The Agreement was negotiated with three Employee Bargaining Representatives. The Agreement is to cover 14 employees who are employed in the Kitchen area of the Australian Club 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 22 August 2013, and voting for the Agreement’s approval took place between 29 November and 9 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 8 of the employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr K Loomes, General Manager identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Licensed Clubs (Victoria) Award 1998 [AP787060] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Loomessaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of shift penalties and annual leave loading. However, these have been loaded into a higher base rate of pay. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 2.6 and 3.1 respectively, and a disputes resolution procedure at clause 3.2 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 20 January 2014, Mr R Cannell appeared with Mr K Loomes for the applicant and Mr E Raptis, Ms B Kirchner and Ms R Black appeared in their capacity as Employee Bargaining Representatives. Mr Cannell 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 said that this Agreement replaced an expired agreement made in 2007. He also reaffirmed that comparative calculations between the loaded rates of the Agreement and the rates of pay applicable under the reference instruments illustrated that the employees were better off under the Agreement. Mr Raptis, Ms Kirchner and Ms Black supported the submissions of Mr Cannell and said that they were happy with the Agreement.

[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 Australian Club Enterprise Agreement 2013 - Kitchen Employees. Pursuant to s 54 of the Act and in accordance with the request of the applicant, the Agreement shall operate from 3 February 2014 and have a nominal expiry date of 2 February 2018.

DEPUTY PRESIDENT

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