Sekkon Group Pty Ltd

[2016] FWCA 1392

[2016] FWCA 1392

FAIR WORK COMMISSION

DECISION

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

Sekkon Group Pty Ltd
(AG2016/32)

SEKKON GROUP - ENTERPRISE AGREMENT 2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 MARCH 2016

Application for approval of the Sekkon Group - Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sekkon 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 Sekkon Group – Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover labour hire employees working in the hospitality industry.

[2] The employees were last notified of their representational rights on 30 November 2015, and voting for the Agreement’s approval took place on 22 December 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 5 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 January 2016, which falls outside the statutory time limit in s 185(3)(a). I consider it fair in all the circumstances to extend the date for lodgement to 11 January 2016 (s 185(3)(b)).

[3] In the Employer’s Declaration in support of the application (Form F17) Mr D Thalhofer, 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 Thalhofersaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award, in that the Agreement does not provide for penalty rates for work performed on weekends and public holidays. However, the Agreement provides for higher rates of pay of around 11-12%. 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 2 March 2016, Mr C Agnew, Solicitor,appeared with Mr D Thalhofer for the applicant. Mr Agnew 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 the base rates of pay under the Agreement are 12% higher than those under Award.

[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. Accordingly, I approve a single enterprise agreement known as the Sekkon Group – Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 9 March 2016 and have a nominal expiry date of 1 August 2018.

DEPUTY PRESIDENT

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