West Lakes Golf Club Incorporated T/A West Lakes Golf Club

[2022] FWCA 611

[2022] FWCA 611

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

West Lakes Golf Club Incorporated T/A West Lakes Golf Club

(AG2022/230)

West Lakes GolF Club Enterprise Agreement 2021

Sporting organisations
COMMISSIONER PLATT	ADELAIDE, 23 FEBRUARY 2022

Application for approval of the West Lakes Golf Club Enterprise Agreement 2021

1. An application has been made for approval of an enterprise agreement known as the West Lakes Golf Club Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by West Lakes Gold Club Incorporated T/A West Lakes Golf Club (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 17 February 2022.

1. On 22 February 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters. After the conference concluded, both the Applicant and the Australian Workers’ Union provided details in relation to their signatories which assured me that they had the requisite authority to sign the Agreement.

1. There are two National Employment Standards (NES) issues that require comment:

·   Clause 7.2.2(ii) of the Agreement provides that employees will be entitled to personal leave where an employee is ill while on annual leave and the illness is such that it would, if the employee was not on annual leave, have rendered the employee unable to attend at the place of employment for a period of not less than three (3) consecutive working days. This appears inconsistent with s.96 of the Act which does not provide a minimum limit for personal leave.

·   Clause 4.3.2 of the Agreement provides that if an employee fails to give notice, the employer has the right to deduct from monies owing to the employee. Clause 4.3.2 does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination).

1. The Applicant provided a NES precedence undertaking on 22 February 2022. The undertaking states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence undertaking, the clauses 7.2.2(ii) and 4.3.2 will not apply to the extent that they are inconsistent with the NES.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not wish to express any views in relation to the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

1. The “Australian Workers’ Union” (AWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 15 November 2023.

COMMISSIONER

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