The Star Pty Ltd

[2013] FWCA 3556

[2013] FWCA 3556

FAIR WORK COMMISSION

DECISION

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

The Star Pty Ltd
(AG2013/6713)

THE STAR ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 5 JUNE 2013

Application for approval of the The Star Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Star Pty Ltd (the ‘applicant’ or ‘The Star’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as The Star Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated for over twelve months with United Voice, NSW Branch (‘United Voice’), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the ‘AMWU’), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ‘CEPU’) (collectively, the ‘Unions’) and a number of non-Union employee bargaining representatives. The Agreement is to cover 3007 employees who are engaged at The Star Casino in Pyrmont, New South Wales, in the areas of customer service, electronic gaming, food and beverage, finance and administration, gaming finance, guest service, kitchen, property operations, safety and security and table games. The Agreement covers approximately 75% of the applicant’s workforce and is expressed to exclude employees who are paid an annualised salary under a Modern Award or an annualised contract. 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 28 March 2012. I note that two earlier attempts last year at having an agreement approved by the employees, were defeated. However, the vote that resulted in the Agreement’s approval took place on 23 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In an online vote conducted by Elections Australia, 1649 of the 2384 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 May 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Harbidge, General Manager Property Operationsidentified the Hospitality Industry (General) Award 2010 [MA000009], the Joinery and Building Trades Award 2010 [MA000029], the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] and the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Harbidgesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of allowances for meals, transport at unsociable hours and first aid, no provision for penalty rates where meal breaks are not taken on time and a reduction in Sunday penalty rates. However, the Agreement also provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments, including rates of pay that are between 8% and 30% higher than those under the reference instruments, longer minimum engagements for part time and casual employees, certain allowances not provided for in the reference instruments, higher penalty rates at nights, higher overtime rates and an entitlement to a free meal where the employee works more than four hours. In addition, all permanent employees with continuous service of at least six months, excluding those in the Facilities Department, will be entitled to an upfront payment of between $500.00 and $6000.00, depending on years of service, in the first full pay period following the Agreement’s approval by the employees. For casual employees, the maximum payment is $5000.00. Rates of pay are to be adjusted by 1.5% on 1 July 2014, 2% on 1 July 2015 and 2.5% on 1 July 2016. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 2.1 and 2.2 respectively, and a disputes resolution procedure at clause 2.3 provides for conciliation by the Commission.

[4] At a hearing of the application on 4 June 2013, Mr R Clarke appeared for the applicant, Ms J Korlevska appeared for United Voice, Ms L Saunders appeared for the AMWU and Mr D Weizman appeared for the CEPU. The Unions had each filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that they wished to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement.

[5] Mr Clarke outlined in some detail the history of the negotiations, the preapproval steps taken and 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 Star had decided to make major changes to the workplace instrument under which it was covered, as the current enterprise agreement was largely derived from an original agreement made approximately two decades ago and which was only ever periodically updated for wage increases. On this occasion, there had been an extensive bargaining process culminating in the making of the Agreement, which had included the development of a bargaining committee which included both Union and non-Union bargaining agents subject to a Charter of Good Faith Bargaining. As a result of employee concerns, the applicant and United Voice undertook a significant survey in relation to conditions, with a view to having the Agreement more likely to be approved by the employees. Ms Korlevska, Ms Saunders and Mr Weizman all supported the applicant’s submissions and the approval of the Agreement.

[6] 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 Star Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 11 June 2013 and have a nominal expiry date of 31 May 2017.

DEPUTY PRESIDENT

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