Prosek Group Pty Ltd

[2016] FWCA 9047

[2016] FWCA 9047

FAIR WORK COMMISSION

DECISION

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

Prosek Group Pty Ltd
(AG2016/7125)

PROSEK GROUP - HOSPITALITY INDUSTRY ENTERPRISE AGREEMENT 2016

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 16 DECEMBER 2016

Application for approval of the Prosek Group - Hospitality Industry Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Prosek Group 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 Prosek Group – Hospitality Industry Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with Mr P Jenner, a nominated employee bargaining representative (EBR) and is to cover 4 employees who are engaged in the applicant’s labour hire company in Ashmore City, QLD. 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 20 October 2016, and voting for the Agreement’s approval took place on 11 November 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 4 employees cast a valid vote and agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 November 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17), Mr D Thalhofer, Company Director 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 Thalhofer said that the Agreement provides for more beneficial rates of pay than the relevant reference instrument (between 11.88% to 22.06% above). He also stated that there were no less beneficial terms than the reference instrument. However, this is not strictly correct. The Commission raised with Mr Thalhofer that the Agreement does not provide for penalty rates. Mr Thalhofer submitted that the hours employees work are such that sufficient hours are worked by employees during the week (for which they receive the higher rate of pay) to compensate for work performed on weekends. He also said that the company does not and will not roster employees to work solely on weekends. Rates of pay are to be adjusted in accordance with the Commission’s Minimum Wage Review decisions. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7.1 and 7.3 respectively, and a disputes resolution procedure at clause 2.4, provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 9 December 2016, Mr Thalhofer appeared for the applicant with Mr Jenner, EBR. Mr Thalhofer 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. The Commission raised with Mr Thalhofer that the Consultation clause at 7.3 was such that it would not be triggered if the employer proposed to change an employee’s regular roster or ordinary hours of work. Mr Thalhofer offered to provide an undertaking to incorporate these circumstances into the clause (a copy was provided to my Chambers on 9 December 2016). 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’. Mr Jenner agreed with the submissions of Mr Thalhofer and was happy with the Agreement.

[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 ss180, 186, 187, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Prosek Group – Hospitality Industry Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 16 December 2016 and have a nominal expiry date of 10 November 2019.

DEPUTY PRESIDENT

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