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[2013] FWCA 4153
DECISION
Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement
EI Administrative Services Pty Ltd
(AG2013/1570)
EI HOSPITALITY SERVICES ENTERPRISE AGREEMENT 2013
Hospitality industry
DEPUTY PRESIDENT SAMS SYDNEY, 3 JULY 2013
Application for approval of the EI Hospitality Services Enterprise Agreement 2013.
[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed
by EI Administrative Services Pty Ltd (the ‘applicant’) which seeks the approval of the Fair
Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the
EI Hospitality Services Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to
cover 5 employees who are engaged in the provision of labour hire services in the hospitality
industry. 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 22 May 2013, and
voting for the Agreement’s approval took place on 17 June 2013. The time limits under s
181(2) of the Act are thereby satisfied. In a secret ballot, all 5 of the employees agreed to
approve the Agreement. The application for approval of the Agreement was lodged on 19
June 2013, thereby satisfying s 185(3) of the Act.
[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Evans,
General Manager identified the Hospitality Industry (General) Award 2010 [MA000009], the
Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479]
and the Training Wage (State) Award 2002 [AN120588] as the relevant reference instruments
for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Evans said that the
Agreement does provide for some terms and conditions that are less beneficial than those
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCA 4153
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under the Award and noted that the Agreement does not provide for a number of allowances
that are not relevant to the business of the employer. However the Agreement provides for
higher rates of pay, meaning that permanent employees working on a Monday to Sunday
roster, receive rates of pay that are between $1.55 and $1.96 an hour higher than those under
the Award and casual employees on the same roster receive rates of pay that are between
$1.36 and $1.72 higher than the Award. Rates of pay are to be adjusted in accordance with the
Commission’s Minimum Wage Review decisions. I am satisfied that the Agreement passes
the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at
clauses 7 and 6 respectively, and a disputes resolution procedure at clause 5 provides for
conciliation and arbitration by the Commission.
[4] At a hearing of the application on 26 June 2013, Ms S Garland, appeared for the
applicant. Ms Garland 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. She said that the Agreement provides for
two pay rate structures, one providing for a higher flat rate of pay Monday to Sunday and one
providing for weekend penalty rates. She explained that the employer had a client that had
two sites, one of which is open Monday to Friday.
[2013] FWCA 4153
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[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 and 188, in so far as relevant to this
application, have been met. I note that the Agreement received unanimous support from the
relevant employees. Accordingly, I approve a single enterprise agreement known as the EI
Hospitality Services Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement
shall operate from 3 July 2013 and have a nominal expiry date of 2 July 2017.
DEPUTY PRESIDENT
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