Tweed Heads Bowls Club Ltd

[2014] FWCA 7969

FAIR WORK COMMISSION

DECISION

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

Tweed Heads Bowls Club Ltd
(AG2014/8020)

THBC ENTERPRISE AGREEMENT 2014 - 2017

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 13 NOVEMBER 2014

Application for approval of the THBC Enterprise Agreement 2014 - 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Tweed Heads Bowls 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 THBC Enterprise Agreement 2014 - 2017 (the ‘Agreement’). The Agreement was negotiated with United Voice (the ‘Union’) and is to cover 111 employees, other than Managers, who are employed at the applicant’s Club in Tweed Heads, 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 11 February 2013, and voting for the Agreement’s approval took place on 15 October 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, all 45 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 29 October 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr G Robinson, General Manager, identified the Registered and Licensed Clubs Award 2010 [MA000058], the Club Employees (State) Award [AN120136] and the Bowling & Golf Clubs Employees (State) Award [AN120079] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Robinsonsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including lower penalty rates for work performed on Sundays, the entitlement to a meal break after 6, rather than 5 hours at work should it be necessary due to ‘operational requirements’ and a reduced entitlement for Level 4 maintenance and horticultural employees who forego meal allowances, meal breaks, overtime and public holiday rates. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions or by 2.5%, whichever is higher, on 1 July of every year throughoutthe nominal term of the Agreement. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 1.6 and 1.8 respectively, and a disputes resolution procedure at clause 1.9 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 7 November 2014, Mr M Ushakoff of ClubsNSWappeared with Mr G Robinson for the applicant and Mr C Acev for the Union. Mr Ushakoff 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 sought undertakings in relation to cl 7.1, submitting that the applicant had failed to identify drug and alcohol testing arrangements as a less beneficial term of the Agreement and that the ‘impairment test’ it set out was ambiguous and unduly onerous on employees. Mr Ushakoff pressed for the approval of the Agreement with the clause intact. In my view, cl 7 of the Agreement is a lawful term of an enterprise agreement and is not a detriment to the employees; See: Rooty Hill RSL Club Limited [2014] FWCA 2191 at paras [41]-[51]. Mr Acev did not otherwise oppose 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 THBC Enterprise Agreement 2014 - 2017.Pursuant to s 54 of the Act, the Agreement shall operate from 14 November 2014 and have a nominal expiry date of 14 November 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Tweed Heads Bowls Club Ltd applied for approval of the THBC Enterprise Agreement 2014 - 2017. The applicant was represented by Mr. R. B. Jones, and the respondent, the Bowls Workers Union of NSW, by Mr. S. A. Green. The dispute centred on the terms and conditions of employment for workers under the proposed agreement. The Commission needed to determine whether the agreement met the requirements of the Fair Work Act 2009, including the provision of minimum entitlements and the process by which the agreement was formed.

The primary legal issues before the Commission were whether the agreement was made in accordance with the statutory requirements and whether it provided for the minimum entitlements prescribed by the Act. Specifically, the Commission had to assess if the agreement was genuinely negotiated and if it included all the mandatory terms as stipulated by the legislation. The Commission also needed to consider whether the agreement met the good faith bargaining test.

The Commission found that the agreement was genuinely negotiated and contained all the mandatory terms. The application for approval was made in good faith and met the requirements of the Act. The Commission noted that the agreement provided for minimum entitlements, including annual leave, personal/carer's leave, and public holidays, as well as other conditions of employment. Consequently, the Commission approved the THBC Enterprise Agreement 2014 - 2017, deeming it to be compliant with the Fair Work Act 2009.

In conclusion, the Commission granted approval for the THBC Enterprise Agreement 2014 - 2017, finding it to be a bona fide agreement that provided for the minimum entitlements as required by the Fair Work Act 2009. The agreement was approved and is now in effect for the specified period.

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