Western Suburbs Leagues Club Illawarra Limited t/as Wests Illawarra

[2013] FWCA 3875

[2013] FWCA 3875

FAIR WORK COMMISSION

DECISION

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

Western Suburbs Leagues Club Illawarra Limited t/as Wests Illawarra
(AG2013/6915)

WESTS ILLAWARRA LEAGUES ENTERPRISE AGREEMENT

Licensed and registered clubs
DEPUTY PRESIDENT SAMS	SYDNEY, 18 JUNE 2013

Application for approval of the Wests Illawarra Leagues Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Western Suburbs Leagues Club Illawarra Limited t/as Wests Illawarra (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Wests Illawarra Leagues Enterprise Agreement (the ‘Agreement’). The Agreement was negotiated with the Liquor and Hospitality Division, United Voice (‘United Voice’) and the Club Managers’ Association, Australia (the ‘CMAA’) (collectively the ‘Unions’). The Agreement is to cover all 80 employees who are engaged at the applicant’s Club in Wollongong, New South Wales.

[2] The employees were last notified of their representational rights on 2 November 2012, and voting for the Agreement’s approval took place on 27 May 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 60 of the 62 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 6 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Musker, identified the Registered and Licensed Clubs Award 2010 [MA000058] (the ‘Modern Award’), the Club Employees (State) Award [AN120136] and the Club Managers (State) Award 2006 [AN120138] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Musker said that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including a minimum engagement of 2.5 hours for part-time or casual employees who conduct bingo, raffles and other promotional activities, the removal of an entitlement to an extra day’s pay or time off in lieu where a public holiday falls on the day of a full-time employee’s rostered day off, less generous penalty rates for maintenance and horticultural employees on Sundays and one, rather than two, paid ten-minute tea breaks for maintenance and horticultural employees, which is granted at the discretion of the employer. However, the Agreement also provides for a number of terms and conditions that are more beneficial than those under the reference instruments, including an exemption preserving certain pay entitlements for Managers, discounted meals, more generous penalty rates for overtime performed on weekends, five weeks annual leave for all permanent employees, the provision of two days study leave or family leave annually and a ‘healthy lifestyle’ payment of $200 each year for permanent employees with more than twelve months continuous service. It was also said that another benefit was the ability to cash out annual and personal leave in certain circumstances. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 14 and 48 respectively, and a disputes resolution procedure clause 45 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application conducted by telephone on 18 June 2013, Mr C Langton of the Registered Clubs Association of NSW (ClubsNSW) and Ms A Musker,appeared for the applicant, Mr C Acev for United Voice and Mr P Cooper for the CMAA. The Unions had each filed Declarations in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that they wished to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement. Mr Langton 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 explained that the Agreement provides rates of pay which are maintained at a minimum of 2% above the minimum Modern Award wage for the relevant classification and that the rates of pay under the Agreement are to payable from the first pay full period after the date of its approval. While I expressed some concern at the expression of the relevant clause (clause 44), Mr Langton said that the Club planned to distribute a memo to notify the employees of when pay raises would be payable and the mechanism by which they were calculated; that is, wages will be adjusted on 1 July each year in accordance with the Commission’s Minimum Wage Review decision to ensure a 2% higher differential above the Modern Award at all times. Mr Acev and Mr Cooper agreed with the submissions of Mr Langton.

[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 Wests Illawarra Leagues Enterprise Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 25 June 2013 and have a nominal expiry date of 25 June 2016.

DEPUTY PRESIDENT

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