The Trustee for Premium Events Australia Unit Trust T/A Hire Republic

[2021] FWCA 2412

[2021] FWCA 2412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee for Premium Events Australia Unit Trust T/A Hire Republic
(AG2021/4272)

PREMIUM EVENTS AND RECREATION SOLUTIONS ENTERPRISE AGREEMENT 2021

Amusement, events and recreation industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 30 APRIL 2021

Application for approval of the Premium Events and Recreation Solutions Enterprise Agreement 2021.

[1] The Trustee for Premium Events Australia Unit Trust T/A Hire Republic (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Premium Events and Recreation Solutions Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] During the approval process issues were raised about whether the Amusement, Events and Recreation Award 2020 (the Events Award) was the appropriate reference instrument for the purposes of considering whether the Agreement passes the Better Off Overall Test (BOOT) in relation to Depot and Field employees. The Applicant provided further information in relation to the environment in which Depot and Field employees normally perform their work. Having considered the information I am satisfied that the employer predominantly undertakes work in relation to events held at or in proximity to venues of the kind described in clause 4.2(a) of the Events Award and that the work is predominantly as described in clause 4.2(b) of the Award. I also accept that to the extent that the employer may have undertaken work which is not in the trades and public promotions industry, that this work is ancillary and was carried out in order for the employer to sustain its operations during the COVID – 19 Pandemic which prevented events of the kind that the employees work in connection with, from being conducted. 

[3] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[4] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[5] I observe that the following provisions of the Agreement may be inconsistent with the National Employment Standards (NES):

● Clause 7.1 – Requirement to work Public Holidays;

● Clause 7.4.1 – Personal/Carer’s Leave Ordinary Accrual; and

● Clause 7.6 – Parental Leave.

[6] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[7] I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account ss.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 7 May 2021. The nominal expiry date of the Agreement is 30 April 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE511262  PR729110>

Annexure A