The Baptist Union of Queensland T/A Queensland Conference and Camping Centres Qld (Mapleton)

[2015] FWCA 7129

[2015] FWCA 7129

FAIR WORK COMMISSION

DECISION

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

The Baptist Union of Queensland T/A Queensland Conference and Camping Centres Qld (Mapleton)
(AG2015/4638)

QCCC (MAPLETON), ENTERPRISE AGREEMENT 2015.

Amusements, Events and Recreation Award 2010
DEPUTY PRESIDENT BULL	SYDNEY, 20 OCTOBER 2015

Application for approval of the QCCC (Mapleton), Enterprise Agreement 2015

[1] An application has been made for the approval of an enterprise agreement known as the QCCC (Mapleton), Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement, and covers Base grade operatives up to the level of leading hand.

[2] The application is made by the employer, the Baptist Union of Queensland, trading as Queensland Conference and Camping Centres Qld (Mapleton) (the applicant).

[3] The Fair Work Commission (the Commission) wrote to the applicant on 16 September 2015 and on a number of other occasions with respect to the Agreement meeting the statutory requirements of the Act and the BOOT as per s.186 of the Act.

[4] The applicant corresponded on a number of occasions to address the concerns raised by the Commission, with final submissions received on 15 October 2015.

Consultation term

[5] The consultation term contained in cl. 28 of the Agreement - Consultation, did not meet the requirements as per s.205(1) of the Act, in particular cl.28(h) potentially dispenses with the requirement to consult with employees with respect to certain matters which would otherwise warrant consultation under the Award.

[6] Pursuant to s.205(2) of the Act, the model consultation term at Schedule 2.3 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model term is attached at Annexure A of this decision.

Flexibility Term

[7] The flexibility term at clause 27 did not meet the requirements of s. 203(2)(b) of the Act, in particular; the term does not require an individual flexibility arrangement to be about permitted matters and to not include unlawful terms.

[8] Pursuant to s. 203(2)(b) of the Act, the model flexibility term at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model term is attached at Annexure A of this decision.

Better Off Overall Test

[9] Section 186 of the Act requires the Commission to be satisfied that the proposed agreement results in employees being better off overall under the Agreement than if they would otherwise be under the relevant award, being the Amusements, Events and Recreation Award 2010 (the Award) in this application. Accordingly, the Commission provided the employer with an opportunity to provide written undertakings acceptable to the Commission in addressing the concerns identified below, pursuant to s.190 of the Act.

Penalties

[10] Under the Agreement, employees are not entitled to a Sunday and public holiday penalty loading, as is provided under the Award. The Commission was concerned that the lack of such penalties may disadvantage employees engaged under the Agreement, and that the increased rates of pay under the Agreement may not adequately compensate circumstances where employees work significant hours on Sundays and public holidays.

[11] Rates of the pay are contained in cl.10(c) of the Agreement – Rates of Pay, tables 1 to 4, depending on the classification of the employee.

Undertaking in relation to Sundays and public holiday work

[12] Undertakings by the applicant are to the effect that employees (subject to the respective conditions as per the engagement under the different tables contained in the pay rate schedule) will not be required to work on Sundays or public holidays, and if in certain circumstances required to do so, overtime provisions of the Agreement shall apply for all hours worked.

Junior employees

[13] Under the Award, junior employees under 17 years of age receive 55% of the minimum adult rate, whereas under the Agreement, junior employees under the age of 15 receive 45% of the relevant adult minimum wage. Accordingly, the applicant was requested to provide an undertaking that employees under the age of 15 would be entitled to receive 55% of the minimum adult wage.

Undertaking in relation to junior employees

[14] As per the undertaking provided by the applicant, junior employees under the age of 15 will receive no less than 55% of the relevant adult rate under the Agreement.

[15] The undertakings are taken to be a term of the Agreement and are contained at Annexure C of this decision.

Requirements under the Act

[16] The employees to be covered by the Agreement are base grade operatives and up to the level of leading hand. Being operationally distinct, pursuant to s.186(3), I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

[17] Taking into account the higher rates of pay and the undertakings provided by the applicant, I am satisfied that the Agreement results in employees being better off overall.

[18] The undertaking is not so substantial that if asked to vote again, the employees who voted would not approve the Agreement. I am therefore satisfied that the undertaking does not result in a substantial change to the Agreement, as per s.190(3)(b) of the Act.

[19] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[20] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[21] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 27 October 2015. The nominal expiry date of the Agreement is 1 July 2017.

DEPUTY PRESIDENT

Annexure A

Annexure B

Annexure C

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