Toronto District Workers' Club Limited

[2015] FWCA 4392

[2015] FWCA 4392

FAIR WORK COMMISSION

DECISION

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

Toronto District Workers' Club Limited
(AG2015/1474)

TORONTO WORKERS' CLUB EMPLOYEES ENTERPRISE AGREEMENT 2015

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 6 JULY 2015

Application for approval of the Toronto Workers’ Club Employees Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Toronto District Workers’ Club Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Toronto Workers’ Club Employees Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and five nominated Employee Bargaining Representatives. The Agreement is to cover 57 employees, other than Maintenance and Horticultural employees (who are covered by a separate enterprise agreement) and managerial employees, employed at the applicant’s Club in Toronto, New South Wales. 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 27 February 2015, and voting for the Agreement’s approval took place between 4 and 9 June 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 45 of the 47 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 17 June 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr M Singleton, Chief Executive Officer 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 Singletonsaid that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including three days notice of changes to rosters for full and part time staff, less generous overtime rates, the removal of allowances for broken shifts, working early and working late. However, the Agreement provides for a number of terms and conditions that are more generous than, or more beneficial than those under the Agreement, including longer minimum engagements for full and part time employees, enhanced annual leave loading and a more generous tool allowance. It was also said that the ability to cash out annual and personal leave constituted other benefits. Rates of pay are to be increased by 2.5% or in accordance with the Commission’s Minimum Wage Review Decisions, whichever is the greater, on 1 July of each year over the course of the Agreement. The Agreement provides for the mandatory flexibility and consultation terms at clauses 17 and 53 respectively, and a disputes resolution procedure at clause 49 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 29 June 2015, Ms J Merrett appeared for the applicant and Mr C Acev for the Union. Ms Merrett 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. 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. However, the Union also put that the applicant had failed to identify cl 20.3 and 20.4 for voluntary extra hours, the removal of rosters from the consultation clause and withholding or deduction of entitlements where an employee fails to return their uniform on termination of employment, as less beneficial terms. Ms Merrett did not agree that the removal of rosters from the consultation clause and the deduction of entitlements in relation to uniforms were relevant to the BOOT and stressed that overtime was not offered and extra hours were strictly voluntary. On balance, I am satisfied that the Agreement meets the BOOT.

[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 Toronto Workers’ Club Employees Enterprise Agreement 2015 Pursuant to s 54 of the Act, the Agreement shall operate from 6 July 2015 and have a nominal expiry date of 6 July 2018.

DEPUTY PRESIDENT

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