Uniting Church in Australia Synod of Victoria and Tasmania, Commission for Mission, Uniting Church Camping Unit

[2013] FWCA 9692

FAIR WORK COMMISSION

DECISION

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

Uniting Church in Australia Synod of Victoria and Tasmania, Commission for Mission, Uniting Church Camping Unit
(AG2013/11615)

UNITING CHURCH CAMPING LAY STAFF COLLECTIVE EMPLOYMENT AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 12 DECEMBER 2013

Application for approval of the Uniting Church Camping Lay Staff Collective Employment Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the Uniting Church in Australia Synod of Victoria and Tasmania, Commission for Mission, Uniting Church Camping Unit (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Uniting Church Camping Lay Staff Collective Employment Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with an Employee Bargaining Representative, Mr B Rudolph. The Agreement is to cover 79 employees who are engaged as lay staff employed at the applicant’s camping facilities in Grantville, Merricks, Halls Gap and Creswick in Victoria. 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 18 April 2013, and voting for the Agreement’s approval took place between 25 October and 11 November 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a postal ballot, 24 of the 29 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 November 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr S Mullen, Director, People and Culture said that the Agreement did not provide for any terms and conditions that were less beneficial than those under the reference instruments. The Agreement provides for the mandatory flexibility and consultation terms at clauses 17 and 18 respectively, and a disputes resolution procedure at clause 12 provides for mediation and consent arbitration by the Commission. Rates of pay are to be incrementally increased by 2% from the first full pay period in January 2014, July 2014, January 2015, July 2015, January 2016, July 2016 and January 2017. I am satisfied that the Agreement passes the BOOT.

[4] At a hearing of the application on 9 December 2013, Mr S Mullen appeared for the applicant and Mr B Rudolph appeared in his capacity as Employee Bargaining Representative. Mr S Mullen 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 conceded an oversight in the F17 in that he had omitted to identify the terms and conditions that were more beneficial than those under the reference instrument. He explained that the Agreement provides for ‘averaged’ hourly rates of pay that are approximately 28% higher than those under the reference instrument as working Friday to Sunday and on public holidays is critical to the business. He also said that the rates of pay due to employees under the Agreement are already being paid to the employees. Mr Rudolph said that while he had some concerns in relation to overtime entitlements, he was largely 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 Uniting Church Camping Lay Staff Collective Employment Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 16 December 2013 and have a nominal expiry date of 16 December 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved the Uniting Church in Australia Synod of Victoria and Tasmania, Commission for Mission, and the Uniting Church Camping Unit. The dispute centred around the application for approval of the Uniting Church Camping Lay Staff Collective Employment Agreement 2013. This agreement sought to establish the terms and conditions under which lay staff employed by the Uniting Church Camping Unit would be governed. The Commission was tasked with determining whether the agreement complied with the requirements set out in the Fair Work Act 2009.

The legal issues that the Commission had to address included whether the proposed agreement met the criteria for being a "single interest" employer agreement, as stipulated in section 172 of the Fair Work Act. This involved examining whether the agreement was made between an employer and employees with a single interest and whether the agreement complied with the procedural requirements for approval. Additionally, the Commission had to consider whether the agreement satisfied the "better off overall test" under section 182 of the Act, ensuring that no employee would be worse off financially or in terms of other conditions of employment.

The Commission determined that the Uniting Church Camping Lay Staff Collective Employment Agreement 2013 was a genuine single interest employer agreement, as it involved the Uniting Church in Australia Synod of Victoria and Tasmania, Commission for Mission, and the employees of the Uniting Church Camping Unit, who shared a common interest in the provision of church-related camping services. The Commission further found that the agreement complied with all procedural requirements and met the "better off overall test." Consequently, the Commission approved the agreement, recognising its validity and applicability under the Fair Work Act.

As a result of the Commission's decision, the Uniting Church Camping Lay Staff Collective Employment Agreement 2013 was approved and became effective. This decision ensured that the lay staff employed by the Uniting Church Camping Unit would be governed by the terms and conditions outlined in the approved agreement, providing a clear framework for their employment relationship.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established