Yaralla Sports Club

[2014] FWCA 4717

[2014] FWCA 4717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Yaralla Sports Club
(AG2014/368)

YARALLA SPORTS CLUB INC ENTERPRISE AGREEMENT 2012

Licensed and registered clubs
COMMISSIONER SPENCER	BRISBANE, 16 JULY 2014

Application for variation of the Yaralla Sports Club Inc Enterprise Agreement 2012.

[1] An application has been made for approval of a variation of the Yaralla Sports Club Inc Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.210 of the Fair Work Act 2009 (the Act). It has been made by Yaralla Sports Club Inc (the Applicant). The Applicant was represented by the Registered and Licensed Clubs Association of Queensland, Union of Employers, trading as Clubs Queensland (Clubs Queensland).

[2] The Agreement, being a single-enterprise agreement, was approved by Fair Work Australia (as it then was) by decision of 19 July 2012. 1 The nominal expiry date of the Agreement is 14 May 2015.2 The Australian Workers’ Union (the AWU/Union) is a party to the Agreement.

[3] The Applicant now applies to vary the Agreement pursuant to s.210 of the Act. The application seeks to vary the Agreement in a number of respects. The proposed variation is Annexure 1 to this decision. The proposed variation would amend the wage rates contained in Clause 6 of the Agreement; insert the Model Consultation Term and the Model Flexibility Term as terms of the Agreement; insert a new wage schedule as Appendix A; and correct specific typographical and numerical discrepancies.

[4] The AWU objected to the variation on a number of grounds. By virtue of an earlier decision of 6 June 2014, the AWU’s objections in relation to genuine agreement, the procedural matters and the period of operation were dismissed.

[5] The AWU also raised an objection to the variation on the basis that it would render the Agreement non-compliant with the Better Off Overall Test (the BOOT).

[6] In response to this objection, the Applicant was directed to file a table comparing the expected earnings for all employee categories under the Agreement (as proposed to be varied) and the reference instrument. This table was to include a comparison of each classification and employment types.

[7] The decision of 6 June 2014, further identified issues with the BOOT in relation to the working pattern of part-time employees under the variation. Specifically, I noted that pursuant to clause 10.4(a)(iii) of the Registered and Licensed Clubs Award 2010 a part-time employee is entitled to have a “regular pattern” of work agreed in writing, not just the ordinary hours of work. Under the proposed variation it was unclear whether a part-time employee would have any entitlement to “reasonably predictable hours of work”. I also expressed concern that the broad drafting of clause 6.2.1.4.2 could lead to an interpretation of that clause that would mean that the Applicant could reduce a part-time employee’s hours at its own discretion and that part-time employees would be much closer to casual employment. In response to the concerns raised, it was suggested that the Applicant consider the provision of an undertaking in relation to these deficiencies.

[8] On 10 June 2014, the Applicant filed a comparison of the expected employee earnings and an undertaking in relation to the issues identified with respect to part-time employees. These documents were subsequently provided to the AWU. The AWU did not file any further material in relation to the objections. It is noted that they were provided with an additional opportunity to provide any further material and elected not to do so.

[9] A copy of the undertaking is attached to the decision as Annexure 2 and, as provided for by s.191 of the Act, is taken to be a term of the Agreement.

[10] On the basis of the material provided, I am satisfied that the varied agreement complies with the requirements of s. 211 of the Act.

[11] The variation is approved and will operate from the date of this decision.

COMMISSIONER

ANNEXURE 1

ANNEXURE 2

 1   [2012] FWAA 5988.

 2   Yaralla Sports Club Inc Enterprise Agreement 2012 clause 2.1.

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