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

[2013] FWCA 5073

[2013] FWCA 5073

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
(AG2013/1767)

THE PIER CAIRNS MANAGEMENT SERVICES PTY LTD - ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 26 JULY 2013

Application for approval of the Pier Cairns Management Services Pty Ltd - Enterprise Agreement 2013.

[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 (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 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union of Employees, Queensland (the ‘Union’). The Agreement is to cover 138 employees who are engaged in hospitality, clerical and engineering classifications at the 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 22 November 2013, and voting for the Agreement’s approval took place on 20-21 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 51 of the 75 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 1 July 2013, 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], the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010], the Hotels, Resorts and Certain Other Licensed Premises Award - State (Excluding South-East Queensland) 2003 [AN140148], the Liquor and Accommodation Industry - Hotels, Resorts and Gaming - (Managerial Staff) - Award 2003 [AP821899], the Engineering Award - State 2002 [AN140107] and the Building Products, Manufacture and Minor Maintenance Award - State 2003 [AN140045] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Smithsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for work performed on weekends and public holidays and the removal of an allowance for broken periods of work. However, the Agreement also provides for base rates of pay that are 15-20% higher than those under the reference instruments, time off in lieu of overtime payments, a $300 bonus where an employee takes 15.2 hours or less of their personal leave in a year and one paid day of leave to participate in certain volunteer programs. It was also said that another benefit included the ability to cash out accrued annual leave in certain circumstances. Rates of pay will be adjusted by 3% on 1 April 2014 and 1 April 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.7 and 11.8 respectively, and a disputes resolution procedure at clause 4.2 provides for conciliation by the Commission.

[4] At a hearing of the application on 12 July 2013, Ms J Smith appeared for the applicant and Ms S Winn for the Union. 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. 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. In response to my query as to a comparatively low voter turnout, she said that a number of ballots were informal in that they were blank, had been marked in both boxes or had unrecognisable marks. Ms Winn submitted that the employee who acted as returning officer was a Union member and that the Union supported the approval of 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 Pier Cairns Management Services Pty Ltd - Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 19 July 2013 and have a nominal expiry date of 21 April 2016.

DEPUTY PRESIDENT

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