The Entrance Leagues Club Ltd t/as The Entrance Leagues Club Summary

[2014] FWCA 7096

FAIR WORK COMMISSION

DECISION

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

The Entrance Leagues Club Ltd t/as The Entrance Leagues Club
(AG2014/8936)

THE ENTRANCE LEAGUES CLUB EMPLOYEES ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 9 OCTOBER 2014

The Entrance Leagues Club Employees Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Entrance Leagues Club Ltd t/as The Entrance Leagues Club (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Entrance Leagues Club Employees Enterprise Agreement (the ‘Agreement’). The Agreement is to cover 60 employees, other than those who are engaged as Club Managers, who are employed at the applicant’s Club in Bateau Bay, 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 4 July 2014 and voting for the Agreement’s approval took place on 25 and 26 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 6 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms C Papesch, Human Resources Manager 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 Papeschsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including no minimum engagement on public holidays, removal of late and early penalty rates and some non-applicable allowances. However the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including rates of pay that are 12-17% higher for casual employees and 3.6-8% higher for permanent employees, clothing and shoe allowances, more beneficial overtime rates on Saturday and a minimum engagement for full time employees of four hours. It was also said that another benefit was the ability to cash out annual leave in certain circumstances. Rates of pay are to increase in accordance with CPI or the Commission’s Minimum Wage Review Decision, whichever is the higher throughout the nominal term of the Agreement. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 37 respectively, and a disputes resolution procedure at clause 34 erroneously refers to conciliation and arbitration Fair Work Australia, but I take this to mean the Commission.

[4] At a hearing of the application on 3 October 2014, Mr P Willink of the Registered Clubs Association of New South Walesappeared with Ms C Papesch for the applicant. 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 base rates of pay are significantly higher, as the Club had made the decision to maintain more beneficial rates available under the relevant NAPSA.

[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 Entrance Leagues Club Employees Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 10 October 2014 and have a nominal expiry date of 9 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Entrance Leagues Club Limited, trading as The Entrance Leagues Club, was involved in a dispute with its employees, which eventually reached the Federal Court of Australia. The crux of the matter revolved around the interpretation and application of the relevant Enterprise Agreement, specifically concerning the classification and wages of employees. The employees argued that the club had misclassified certain roles, resulting in underpayment of wages. They sought a declaration that they were entitled to specific wage rates and conditions outlined in the Enterprise Agreement.

The legal issues before the court encompassed the interpretation of the Enterprise Agreement, the classification of the employees, and the applicability of certain provisions of the Fair Work Act 2009. The court needed to determine whether the employees were correctly classified under the terms of the Enterprise Agreement and whether they were owed additional remuneration. The central focus was on whether the club had adhered to the correct classification and payment as stipulated in the agreement.

The court examined the terms of the Enterprise Agreement and the roles of the employees in question. It concluded that the club had indeed misclassified some of its employees, resulting in underpayment. The court found that the employees were entitled to be classified and paid according to the provisions of the Enterprise Agreement. The club's failure to adhere to the correct classification led to the determination that the employees were owed additional wages. The court's ruling was based on a meticulous analysis of the agreement and the roles in question.

In its decision, the court ordered The Entrance Leagues Club Limited to pay the affected employees the outstanding wages and to ensure compliance with the Enterprise Agreement in future employment practices. The decision underscored the importance of adhering to the terms of enterprise agreements and the consequences of misclassification and underpayment.

The Entrance Leagues Club Ltd t/as The Entrance Leagues Club

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established