Twin Towns Services Club Ltd

[2017] FWCA 2250

[2017] FWCA 2250

FAIR WORK COMMISSION

DECISION

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

Twin Towns Services Club Ltd
(AG2017/933)

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 24 APRIL 2017

Application for approval of the Twin Towns Services Club Limited Management Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Twin Towns Services Club (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 2017 (the ‘Agreement’). The Agreement was negotiated with Ms R Wilson and Mr T Philip, Negotiating Committee Members and is to cover 22 employees who are engaged as managers (excluding executive managers) at the applicant’s premises in Tweed Heads, NSW. 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 20 October 2016, and voting for the Agreement’s approval took place from 6 to 13 March 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 19 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 22 March 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Smith, General Manager identified the Registered and Licensed Clubs Award 2010 [MA000058] as the relevant reference instrument 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 instrument and that there are no less beneficial terms. The Agreement provides for rates of pay which are between 59-61% higher than the reference instrument, higher annual leave loading, enhanced superannuation benefits, as well as family and domestic violence provisions. Rates of pay are to be increased by 2.7% on 1 January each year from 2017 to 2020. 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 mediation by the Commission.

[4] At a hearing of the application on 18 April 2017, Mr G Arnold of Effective Workplace Solutions,appeared for the applicant with Mr R Smith, Mr T Philip and Ms R Wilson. 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. During the hearing, I raised with Mr Arnold two concerns I had in relation to the Agreement. The first issue, concerning the Dispute Settlement Procedure, was that it did not include a reference to disputes arising in relation to the National Employment Standards. The second issue concerned the Consultation requirements at cl 36 which omitted reference to an employee’s regular hours of work. Mr Arnold offered to provide an undertaking to remedy both of these concerns (which he provided to Chambers that day, 18 April 2017). Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[5] Having heard the applicant’s 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 ss180, 186, 187, 190 and 191, 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 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 25 April 2017 and have a nominal expiry date of 18 April 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE424109  PR592047 >