The Pier Cairns Management Services Pty Ltd t/as Shangri-La Hotel, The Marina, Cairns

[2016] FWCA 3175

[2016] FWCA 3175

FAIR WORK COMMISSION

DECISION

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

The Pier Cairns Management Services Pty Ltd t/as Shangri-La Hotel, The Marina, Cairns
(AG2016/855)

THE PIER CAIRNS MANAGEMENT SERVICES PTY LTD - ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 20 MAY 2016

Application for approval of The Pier Cairns Management Services Pty Ltd - Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Pier Cairns Management Services Pty Ltd t/as Shangri-La Hotel, The Marina, Cairns (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Pier Cairns Management Services Pty Ltd – Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover 140 employees who are engaged in hospitality, clerical, engineering and security classifications at Shangri-La Hotel, The Marina in Cairns, Queensland. 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 February 2016, and voting for the Agreement’s approval took place on Wednesday 30 and Thursday 31 March 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 63 of the 66 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 8 April 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Ms J Smith, Director of Human Resources,identified the Hospitality Industry (General) Award 2010 [MA000009] and the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Smithsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Awards, including the removal of penalty rates for work performed on weekends and public holidays. However, these have been loaded into higher rates of pay. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility term at clause 1.7, and a disputes resolution procedure at clause 4.2 provides for conciliation by the Commission.

[4] At a hearing of the application on 17 May 2016, Ms J Smith appeared for the applicant. Ms Smith 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. She explained that base rates of pay are between 17 and 30% higher than those under the reference instruments and that rates of pay are to be increased by 3% on 1 April 2017, 1 April 2018 and 1 April 2019. She also offered an undertaking to amend the consultation clause at cl 11.9 to include a reference to changes to regular rosters and ordinary hours. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as The Pier Cairns Management Services Pty Ltd – Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 24 May 2016 and have a nominal expiry date of 21 April 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code J, AE419007  PR580540>