Twin Towns Services Club Limited t/as Twin Towns Clubs & Resorts

[2014] FWCA 896

FAIR WORK COMMISSION

DECISION

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

Twin Towns Services Club Limited t/as Twin Towns Clubs & Resorts
(AG2014/3375)

TWIN TOWNS SERVICES CLUB LIMITED MANAGEMENT ENTERPRISE AGREEMENT 2014

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 7 FEBRUARY 2014

Application for approval of the Twin Towns Services Club Limited Management Enterprise Agreement 2014.

[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 Management Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Ms R Wilson. The Agreement is to cover 17 employees who are employed as Managers, excluding Executive Managers, at the applicant’s Club in Tweed Heads, New South Wales.

[2] The employees were last notified of their representational rights on 2 September 2013, and voting for the Agreement’s approval took place between 23 December 2013 and 6 January 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, all 17 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 14 January 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Smith, Chief Executive Officer identified the Registered and Licensed Clubs Award 2010 [MA000058] and the Club Managers’ (State) Award 2006 [AN120138] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Smithsaid that the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, enhanced annual leave loading linked to absenteeism and provision for payment for or reimbursement of mobile phone costs. Rates of pay are to be increased by 2.6% at the commencement of the Agreement, then by 2.5% or in accordance with the Commission’s Minimum Wage Review Decision, whichever is higher, on 1 January 2015 and 1 January 2016. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 4 and 36 respectively, and a disputes resolution procedure at clause 14 provides for conciliation and by the Commission or mediation by a mutually agreed third party..

[4] At a hearing of the application on 28 January 2014, Mr G Arnold of Effective Workplace Solutions appeared with Mr R Smith for the applicant and Ms R Wilson appeared in her capacity as an Employee Bargaining Representative. 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 more generous annual leave loading linked to absenteeism levels had been a feature of the previous agreement and that it went beyond the mandated 17.5% loading. Ms Wilson confirmed that she had been involved in the negotiations and was happy with 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 Twin Towns Services Club Limited Management Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 4 February 2014 and have a nominal expiry date of 4 February 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Twin Towns Services Club Limited, trading as Twin Towns Clubs & Resorts, applied for approval of their Management Enterprise Agreement 2014. The dispute was heard in the Fair Work Commission, the federal workplace relations tribunal. The primary legal issues were whether the agreement met the criteria for approval under the Fair Work Act 2009, including whether it provided for a fair and reasonable rate of pay, hours of work, leave, and other conditions of employment.

The Fair Work Commission examined whether the agreement contained all the mandatory terms prescribed by the Act and if it was made in good faith. The Commission also considered the process by which the agreement was negotiated, the extent of employee and employer consultation, and the fairness of the agreement's terms to both parties. After thorough analysis, the Commission found that the agreement met the legislative requirements. It was fair and reasonable, and made in good faith, taking into account the economic circumstances and the interests of both employers and employees.

The Fair Work Commission approved the Management Enterprise Agreement 2014, finding it compliant with all statutory requirements. The agreement was deemed to provide for fair and reasonable terms and conditions of employment, and was thus valid and enforceable. The Commission's decision concluded that the agreement was beneficial and appropriate under the circumstances, addressing the needs of both the management staff and the club.

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