Tourism Holdings Australia Pty Limited

[2015] FWCA 4478

[2015] FWCA 4478

FAIR WORK COMMISSION

DECISION

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

Tourism Holdings Australia Pty Limited
(AG2015/2631)

TOURISM HOLDINGS AUSTRALIA PTY LIMITED BRANCH EMPLOYEE COLLECTIVE AGREEMENT 2014

Tourism industry
COMMISSIONER BULL	SYDNEY, 7 JULY 2015

Application for approval of the Tourism Holdings Australia Pty Limited Branch Employee Collective Agreement 2014.

[1] An application has been made by Tourism Holdings Australia Pty Limited (the applicant) for the approval of an enterprise agreement known as the Tourism Holdings Australia Pty Limited Branch Employee Collective Agreement 2014 (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] The Australian Services Union (ASU) was a bargaining representative involved in the agreement making process, although it has not submitted a Form F18 declaring that it supports the approval of the Agreement or wishes to be covered by the Agreement. On 26 June 2015, the Commission wrote to the ASU asking whether it wished to be covered by the Agreement. No response was received from the ASU in this regard.

[3] Correspondence was received from the ASU on 8 May 2015 noting concerns it had with the Agreement. In particular, these concerns were in relation to employee representatives, salary rates and the expectation of employees working reasonable additional hours under the Agreement.

[4] On 17 June, 1 and 2 July 2015 the Commission wrote to the applicant with respect to issues it had with the Agreement, it also noted the issues raised by the ASU. In particular, the Commission’s correspondence were with respect to the:

i. Nominal expiry date of the Agreement;

ii. Employee representatives involved in the agreement making process; and

iii. Agreement satisfying the better off overall test under s.186 of the Act.

[5] Correspondence was received from the applicant addressing the concerns raised by the Commission on 18, 26 June and 2 July 2015.

Nominal Expiry Date

[6] Clause 2 of the Agreement – Definitions, defines the nominal expiry date of the Agreement to be 4 years from the date of operation of the Agreement. Pursuant to s.186(5) of the Act, the nominal expiry date of an agreement must not be more than 4 years from the date of approval.

Undertaking in relation to the nominal expiry date

[7] The applicant has provided an undertaking amending the nominal expiry date to be defined as 4 years from the date of approval.

Employee Representatives involved in the agreement making process

[8] At 5.1 of the application (F16), the applicant stated that there were no employee bargaining representatives involved in the agreement making process. In the ASU’s correspondence of 8 May 2015, it raised an issue that throughout the negotiations there had been at least one employee representative directly representing each one of the companies many locations.

[9] In response, the applicant submitted that there were no employee bargaining representatives as described in ss.176(1)(c) of the Act involved in the agreement making process. In particular, the applicant noted that there were no instruments of appointment signed by any employee appointing a bargaining representative given to the applicant.

[10] It is further submitted that as has been the practice in prior years, there was an informal employee branch representative who was chosen by each branch to act as an informal employee branch representative during negotiations.

[11] The Commission asked for the ASU to provide comment on the applicant’s submissions in relation to this. No comment was received in this regard from the ASU.

[12] Pursuant to s.176(1)(c) of the Act, a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement. Accordingly, I am satisfied that there is no issue in this regard.

Better Off Overall Test (BOOT)

[13] The applicant declared in its statutory declaration (F17) , a number of entitlements which are less when compared to the Clerks – Private Sector Award 2010 (the Clerks Award) and the Vehicle Manufacturing , Repair, Services and Retail Award 2010 (the Vehicle Award), being the relevant awards for the purposes of the BOOT. However, it also noted that there are a number of entitlements that are more beneficial than the relevant awards, including a higher minimum salary, an incentive payment scheme in addition to the employee’s salary, and a bonus one- off payment.

[14] With respect to the Agreement satisfying the BOOT, the Commission was particularly concerned with the Agreement providing reduced weekend and public holiday penalties in comparison to the relevant awards. The Commission proposed a number of undertakings to overcome this issue, including increases to rates of pay. I note that there was no issue with casuals being better off under the Agreement.

[15] In response, the applicant submitted that full time employees usually work one Saturday and one Sunday every 3 weeks and may only work one Saturday and one Sunday every 4 weeks in the low season. With respect to part time employees, they generally work regular hours through the week, with only additional hours worked on the weekend. The applicant provided a number of rosters to support this position.

[16] The Commission requested the applicant provide the above submissions in the form of undertakings to support their submissions.

Undertakings in relation to the BOOT

[17] In response to the concerns raised by the Commission, the applicant has provided undertakings to the following effect:

i. Increased rates of pay for all full time employees under cl.16.1 of the Agreement;

ii. Full time employees will be rostered to work no more than an average of one Saturday and one Sunday every 3 weeks over a 12 month period; and

iii. Part time employees will only be rostered to work regular hours Monday to Friday, with only additional hours worked on the weekend.

[18] Subsequent to the undertakings provided by the applicant, the ASU noted that they continue to have a concern over the “usual” hours of work for employees on the basis of the rosters provided. The ASU go on to state that if the Commission is assured that any time worked over the “usual hours” are paid at the appropriate overtime rates then it would have no further concerns. 1

[19] The applicant has provided undertakings in support of the submitted rosters regarding weekend work, and overtime and hours of work provisions are provided under the Agreement.

[20] I am satisfied that the undertakings and submissions provided adequately addresses the concerns raised by the Commission as well as those noted by the ASU, and that the Agreement results in employees being better off overall under the Agreement.

[21] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

[22] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[23] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[24] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 14 July 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

[25] This decision and undertakings should be brought to the attention of employees covered by the Agreement by the applicant.

COMMISSIONER

Annexure A

 1   ASU’s written correspondence of 2 July 2015.

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