UOW Pulse Ltd

[2016] FWCA 8963

[2016] FWCA 8963

FAIR WORK COMMISSION

DECISION

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

UOW Pulse Ltd
(AG2016/7240)

PULSE HOSPITALITY OPERATIONS AGREEEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 DECEMBER 2016

Application for approval of the Pulse Hospitality Operations Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by UOW Pulse Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Pulse Hospitality Operations Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with United Voice, Liquor and Hospitality Division (the ‘Union’) and is to cover 136 employees who are engaged in the applicant’s hospitality operations. 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 14 June 2016, and voting for the Agreement’s approval took place on 10 November 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 37 of the 43 employees who cast a valid vote agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 November 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr M Gillmore, General Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] (‘Hospitality Award’) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’).

[4] Mr Gillmore said 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 including higher casual loading, increased wage rates and more beneficial minimum engagements for casual employees. Mr Gillmore also submitted the Agreement contains some provisions which are less beneficial than the reference instrument, including no evening shift penalty as well as the relevant rate employees receive for overtime in certain circumstances. Rates of pay are to be increased by 3% on approval of the Agreement, backdated to March 2016, with further increases of 3% in March 2017 and March 2018. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 9 respectively, and a disputes resolution procedure at clause 8 provides for conciliation and consent arbitration by the Commission.

[5] At the hearing on 9 December 2016, Mr W Clarke appeared for the applicant and Mr C Acev for the Union. Mr Clarke 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) opposing the approval of the Agreement while also giving notice that it wishes to be covered by the Agreement (s 183). Mr Acev submitted that the relevant reference instrument ought to be the Higher Education (General Staff) Award 2010 [MA000007] (‘Higher Education Award’). The Commission raised with Mr Acev that Schedule B – Classification Definitions in the Higher Education Award refers to a variety of positions such as cleaners, labourers and tradespersons but contains no reference to positions such as bartenders or hospitality workers (which are the positions covered by the Agreement). In any event, Mr Acev agreed that notwithstanding whether the Higher Education Award or the Hospitality Award is the relevant reference instrument, the Agreement still passes the BOOT. In as far as it is necessary for the purposes of this application, I am satisfied that the relevant reference instrument is the Hospitality Award. For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[6] 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 Pulse Hospitality Operations Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 16 December 2016 and have a nominal expiry date of 10 March 2019.

DEPUTY PRESIDENT

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