Twin Towns Services Club Limited

[2013] FWCA 8597

[2013] FWCA 8597

FAIR WORK COMMISSION

DECISION

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

Twin Towns Services Club Limited
(AG2013/11018)

TWIN TOWNS SERVICES CLUB LIMITED ENTERPRISE AGREEMENT 2013

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 31 OCTOBER 2013

Application for approval of the Twin Towns Services Club Limited Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Twin Towns Services 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 Twin Towns Services Club Limited Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with United Voice (Liquor and Hospitality Division) (the ‘Union’) and three Employee Bargaining Representatives. The Agreement is to cover 283 employees who are employed at the applicant’s Club in Tweed Heads, New South Wales. I note that Management are not covered by the Agreement. 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 July 2013, and voting for the Agreement’s approval took place between 23 September and 11 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 116 of the 117 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Pain, Group Services 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 Painsaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instruments, including an entitlement to a meal break after working for five hours (or six hours in an ‘emergency’) and a lack of automatic conversation from casual to permanent employment. However, the Agreement provides for a number of terms and conditions that are more beneficial than, or in excess of those under the reference instruments, including higher rates of pay, enhanced annual leave loading linked to absenteeism, a minimum engagement of three hours for casual employees, more generous penalty rates for overtime on Saturdays, blood donors leave, repatriation leave and an immunisation programme. Rates of pay are to be adjusted by 2.5% on 1 July 2014 and 1 July 2015 or in accordance with the Commission’s Minimum Wage Review decisions, whichever is the greater. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 9 and 10 respectively, and a disputes resolution procedure at clause 11 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 30 October 2013, Mr G Arnold of ClubsNSW,appeared with Mr R Smith, CEO, Ms R Wilson, Operations Manager, Ms R Walker, Payroll Officer and Mr T Philip, Group Operations Manager for the applicant and Mr C Acev for the Union. 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. Mr Arnold 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. He explained that the Agreement had been negotiated over the past three years and that the employees had been covered by the Modern Award during this period. He also confirmed that the employees had been paid the first increase due under the Agreement. Mr Acev supported the submissions of Mr Arnold.

[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 Twin Towns Services Club Limited Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 6 November 2013 and have a nominal expiry date of 6 November 2016.

DEPUTY PRESIDENT

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