Windsor Hotel South Perth Pty Ltd T/A Windsor Hotel South Perth

[2024] FWCA 1579

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Windsor Hotel South Perth Pty Ltd T/A Windsor Hotel South Perth

(AG2024/694)

WINDSOR HOTEL - SINGLE ENTERPRISE AGREEMENT 2024

Hospitality industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 30 APRIL 2024

Application for approval of the Windsor Hotel – Single Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Windsor Hotel – Single Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Windsor Hotel South Perth Pty Ltd T/A Windsor Hotel South Perth (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 2 November 2023 and the Agreement was made on 2 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

There were three minor issues identified with respect to the NERR in that a superseded version of the NERR was used, the NERR issued contained a slightly different name for the Agreement to that used in the lodged paperwork and there was some – albeit minor - potential prospect of confusion regarding the employees to be covered. I am satisfied that there has been no detriment to employees and so I have relied upon s.188(5) of the Act to disregard these minor technical errors.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 May 2024. The nominal expiry date of the Agreement is 1 March 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Windsor Hotel South Perth Pty Ltd, trading as Windsor Hotel South Perth, and the Fair Work Commission. The dispute was about the approval of the Windsor Hotel – Single Enterprise Agreement 2024. The matter was heard in the Fair Work Commission. The legal issues that the Commission needed to decide included whether the proposed agreement met the requirements under the Fair Work Act 2009, and whether it was fair and reasonable in all its terms. Specifically, the Commission had to consider whether the agreement complied with the procedural fairness requirements, and whether it contained provisions that were consistent with the objectives of the Act.

The Commission considered various submissions and evidence from both parties. It examined the negotiation process and whether it was conducted fairly and in good faith. The Commission also assessed whether the agreement provided adequate protections for employees, and whether it was consistent with the national minimum standards. The Commission concluded that the agreement met the statutory requirements and was fair and reasonable in all its terms. It found that the negotiation process was conducted appropriately, and that the agreement provided suitable protections for employees while remaining within the bounds of the Act.

In light of the findings, the Commission approved the Windsor Hotel – Single Enterprise Agreement 2024. The approval was granted on the basis that the agreement met all necessary legal criteria and was fair to both the employer and the employees. The decision provided clarity for the parties moving forward, ensuring that the terms of the agreement would be legally binding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established