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

Printed by authority of the Commonwealth Government Printer

The case before the court involved Sekkon Group Pty Ltd and the Australian Manufacturing Workers' Union (AMWU). The dispute pertained to the application for the approval of the Sekkon Group - Enterprise Agreement 2015. The matter was heard in the Fair Work Commission (FWC) in Australia. The central issue before the commission was whether the agreement met the necessary legal requirements for approval under the Fair Work Act 2009, specifically focusing on whether it was a genuine enterprise agreement and if it complied with the provisions for minimum terms and conditions as outlined in the Act.

The court examined the submissions from both parties and the relevant legislative framework. It was necessary to determine if the agreement was made genuinely and in good faith, without any undue influence or coercion. Additionally, the court needed to assess if the agreement provided for minimum terms and conditions that were not less favourable than those set out in the relevant award or the national employment standards. The court considered the procedural fairness in the negotiation process and whether the agreement contained all the mandatory provisions required by law. The court also evaluated the evidence provided regarding the bargaining process and the extent of the union's involvement and influence.

After thorough examination, the Fair Work Commission determined that the Sekkon Group - Enterprise Agreement 2015 was a genuine agreement that complied with the statutory requirements. The commission found that the agreement was made without any improper influence and that it provided for minimum terms and conditions that were at least as favourable as those provided by the relevant award or the national employment standards. The court was satisfied with the evidence presented regarding the procedural fairness of the negotiations and the extent of the union's involvement. Consequently, the FWC approved the enterprise agreement as compliant with the legal standards. The final orders confirmed the approval of the agreement, allowing it to take effect as per the terms outlined.

Sekkon Group Pty Ltd

DECISION

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