Toongabbie Sports and Bowling Club Ltd

[2016] FWCA 6177

[2016] FWCA 6177

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s185 - Application for approval of a single-enterprise agreement

Toongabbie Sports and Bowling Club Ltd
(AG2016/4038)

TOONGABBIE SPORTS AND BOWLING CLUB LTD EMPLOYEES ENTERPRISE AGREEMENT 2016

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 1 SEPTEMBER 2016

Application for approval of the Toongabbie Sports and Bowling Club Ltd Employees Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Toongabbie Sports and Bowling Club Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Toongabbie Sports and Bowling Club Ltd Employees Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with the Liquor and Hospitality Division, United Voice (the ‘Union’) and is to cover 21 employees who are employed at the applicant’s Club in Toongabbie, New South Wales, excluding Managers, Apprentices, Trainees and Maintenance/Horticultural employees. 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 2 April 2015, and voting for the Agreement’s approval took place between 12 and 17 July 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 9 of the 13 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 27 July 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr A Lauridsen, Secretary Manager, identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Employees (State) Award [AN120136] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Lauridsensaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including the removal of penalty rates for night shifts and early shifts. However, the Agreement provides for terms and conditions that are more beneficial than or in excess of those under the reference instruments, including higher rates of pay, a more beneficial definition of shiftworkers, more flexible hours of work for part time employees, some higher allowances and paid training. It was also said that another benefit included the ability to cash out annual leave and personal/carer’s leave in certain circumstances. Rates of pay are to be increased by the Commission’s Minimum Wage Review Decision on the first full pay period on or following 1 July each year until the nominal expiry date is reached. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 11 and 37 respectively, and a disputes resolution procedure at clause 34 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 30 August 2016, Mr C Langton from the Registered Clubs Association of New South Wales appeared for the applicant and Mr C Acev appeared for the Union. The Union had filed a Declaration in relation to the application (Form 18) opposing the approval of the Agreement while also giving notice that it wishes to be covered by the Agreement (s 183). The Union’s opposition to the agreement was on the basis that the applicant had entered into agreements with individual employees, which Mr Acev referred to as ‘guarantees’ for certain entitlements that are not conferred by the Agreement. Mr Acev submitted that the applicant was not applying conditions of employment uniformly to all employees. While I note the Union’s concern, it is not a basis for refusing to approve the Agreement. The individual arrangements referred to provide for conditions more favourable than under the Agreement and relate to historic arrangements that have specifically applied to the Club Industry. For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Mr Langton 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.

[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 Toongabbie Sports and Bowling Club Ltd Employees Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 6 September 2016 and have a nominal expiry date of 30 August 2020.

DEPUTY PRESIDENT

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