Wattlaw Pty Ltd t/as Thomas Henry House

[2016] FWCA 7257

[2016] FWCA 7257

FAIR WORK COMMISSION

DECISION

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

Wattlaw Pty Ltd t/as Thomas Henry House
(AG2016/5941)

THOMAS HENRY HOUSE ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 OCTOBER 2016

Application for approval of the Thomas Henry House Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Wattlaw Pty Ltd t/as Thomas Henry House (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Thomas Henry House Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is to cover all employees (currently 2) of the applicant’s residential care facility located at Clunies Ross Court, Eight Miles Plains, QLD.

[2] The employees were last notified of their representational rights on 10 August 2016, and voting for the Agreement’s approval took place on 7 September 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, both of the employees who are to be covered by the Agreement agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 September 2016. While I note that this falls outside the statutory time limit set out in s 185(3)(a) of the Act, I consider it fair in all the circumstances to extend the date for lodgement to 23 September 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17), Ms G McIlroy, Senior Workplace Relations Consultant, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). The terms and conditions under the Agreement largely replicate those set out in the Award. Nevertheless, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 39 and 41 respectively, and a disputes resolution procedure at clause 40 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 15 July 2016, Ms G McIlroy, appeared with Mr M Farnan of the applicant. Ms McIlroy 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. She explained that rates of pay are to be increased by 3% on the first, second and third anniversaries of the Agreement.

[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 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 Thomas Henry House Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 12 October 2016 and have a nominal expiry date of 4 October 2020.

DEPUTY PRESIDENT

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