YHA Ltd T/A YHA Ltd

[2016] FWCA 1301

[2016] FWCA 1301

FAIR WORK COMMISSION

DECISION

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

YHA Ltd T/A YHA Ltd
(AG2015/7238)

YHA LTD ENTERPRISE AGREEMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 1 MARCH 2016

Application for approval of the YHA Ltd Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by YHA Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as YHA Ltd Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 273 employees who are employed at the applicant’s hostels across Australia, excluding those staff engaged principally in Regional Office duties. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 1 August 2015, and voting for the Agreement’s approval took place between 8 and 14 December 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a vote for the Agreement’s approval, 204 of the 216 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 24 December 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr R Henke, Operations Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Henkesaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, including the removal of penalty rates for work performed on weekends and public holidays and changes to ordinary hours for part time employees. However, the Agreement provides for higher rates of pay and six weeks’ annual leave. The Agreement provides for the mandatory flexibility and consultation terms at clauses 46 and 47 respectively, and a disputes resolution procedure at clause 44 erroneously refers to Fair Work Australia, which I take as providing for conciliation by the Commission.

[4] At a hearing of the application on 24 February 2016, Mr T Doyle and Mr R Henke appeared for the applicant and Ms J Palmer and Mr D Avis appeared as representatives of the employees, although I note that they were not nominated as Employee Bargaining Representatives. Mr Doyle 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 rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. The application was adjourned to allow the applicant to consider a number of issues as to the Agreement satisfying the BOOT. The applicant subsequently provided indicative employee rosters demonstrating that the BOOT had been satisfied, noting in particular that the Agreement provides for six weeks’ annual leave for all full time employees and pro-rata for part time employees. I am satisfied that the Agreement passes the BOOT. Mr Doyle also provided an undertaking dealing with the rostering of Managers on weekends and Managers’ minimum rates of pay. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’.

[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, 188, 190 and 191 in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the YHA Ltd Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 8 March 2016 and have a nominal expiry date of 8 March 2019.

DEPUTY PRESIDENT

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