The Trustee for C & R Resorts Trust t/as Wallaroo Marina Apartments

[2016] FWCA 1247

[2016] FWCA 1247

FAIR WORK COMMISSION

DECISION

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

The Trustee for C & R Resorts Trust t/as Wallaroo Marina Apartments
(AG2015/7890)

WALLAROO MARINA APARTMENTS ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 MARCH 2016

Application for approval of the Wallaroo Marina Apartments Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by The Trustee for C & R Resorts Trust t/as Wallaroo Marina Apartments (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Wallaroo Marina Apartments Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with Ms T Boundy, a nominated Employee Bargaining Representative (EBR) and is to cover 10 employees, other than Managerial employees, who are employed at the applicant’s serviced apartments in Wallaroo, South Australia. 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 21 April 2015, and voting for the Agreement’s approval took place between 9 and 15 December 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 7 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 30 December 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Bisbal, Director HR/IR, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Bisbalsaid that the Agreement provides for higher rates of pay and discounted accommodation rates for employees and their families and that there are no less beneficial terms. I am satisfied that the Agreement passes the BOOT. While the Agreement purports to provide for the mandatory flexibility clause at cl 41 and a merged consultation/dispute resolution terms at clause 42 respectively, these are not compliant with the Act. Accordingly, the model consultation clause, flexibility clause and dispute resolution clause apply (ss 202, 205, 186) and are taken as terms of the Agreement, replacing clauses 41 and 42

[4] At a hearing of the application on 25 February 2016, Ms A Bisbal and Ms I Sterns appeared for the applicant and Ms T Boundy appeared in her capacity as EBR. Ms Bisbal 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. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. Ms Boundy supported the submissions of Ms Bisbal and had filed a Declaration in relation to the application (Form F18A) supporting 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 Wallaroo Marina Apartments Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 3 March 2016 and have a nominal expiry date of 2 March 2020.

DEPUTY PRESIDENT

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