The Australian Workers' Union

[2013] FWCA 8343

[2013] FWCA 8343

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
(AG2013/9775)

TS (AUSTRALIA) AND THE AWU VICTORIA GARRISON LIFESTYLE SERVICES COLLECTIVE AGREEMENT 2013 TO 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 28 OCTOBER 2013

Application for approval of the TS (Australia) and The AWU Victoria Garrison Lifestyle Services Collective Agreement 2013 to 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the Australian Workers’ Union (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the TS (Australia) and The AWU Victoria Garrison Lifestyle Services Collective Agreement (the ‘Agreement’). The Agreement was negotiated with the Australian Workers Union (the ‘Union’). The Agreement is to cover 72 employees who are engaged in providing hospitality, catering and recreational services to the Department of Defence, at two Defence bases located in Laverton and Crib Point in 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 9 November 2012, and voting for the Agreement’s approval took place on 27 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 39 of the employees who voted, unanimously 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 N Koletsis, Industrial Relations Manager identified the Hospitality Industry (General) Award 2010 [MA000009]as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Koletsis said that the Agreement does provide for some less beneficial terms and conditions, including a lesser meal allowance and laundry allowance than that set out in the Award. However, the Agreement provides employees with a number of terms and conditions that are more beneficial than those in the reference instrument, including higher wage rates for full-time employees, higher loading for casual employees, additional loading for part-time employees, higher penalty rates on Saturdays for all employees and a Consultative Committee will be established to address workplace changes. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses clause 8.5.2 and clause 28.0 respectively, and a disputes resolution procedure clause 33.0 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 24 October 2013, Mr C Winter, Industrial Officer appeared for the Union. There was no appearance for Transfield Services (Australia) Pty Ltd. 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 Winter 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. Mr Winter explained that the Union had lodged the application to speed up the process and ensure that employees were paid their wage increases from the 1 March 2013. Mr Winter also noted that the Union actively participated in all negotiation meetings and he was confident that employees were well informed about the terms of the Agreement and the ballot process.

[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 TS (Australia) and The AWU Victoria Garrison Lifestyle Services Collective Agreement 2013 to 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 31 October 2013 and have a nominal expiry date of 1 March 2016.

DEPUTY PRESIDENT

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