Sennhart Pty Limited

[2013] FWCA 3914

[2013] FWCA 3914

FAIR WORK COMMISSION

DECISION

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

Sennhart Pty Limited
(AG2013/1490)

SENNHART PTY LIMITED ENTERPRISE AGREEMENT 2013

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 26 JUNE 2013

Application for approval of the Sennhart Pty Ltd Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sennhart Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Sennhart Pty Limited Enterprise Agreement 2013 (the ‘Agreement’). The Agreement is to cover 40 employees engaged in the provision of live performances and hospitality services at the applicant’s premises, known as the Stonewall Hotel, in Darlinghurst, New South Wales.

[2] The employees were last notified of their representational rights on 15 May 2013, and voting for the Agreement’s approval took place on 11 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 11 of the 18 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 13 June 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Foo, Director, identified the following instruments as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’):

● the Hospitality Industry (General) Award 2010 [MA000009];
● the Live Performance Award 2010 [MA000081];
● the Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998 [AP783479];
● the Liquor and Accommodation Industry - Hotels, Resorts and Gaming - (Managerial Staff) Award 2003 [AP821899];
● the Entertaining and Broadcasting Industry Live Theatre and Concert (State) Award [AN120200]; and
● the Training Wage (State) Award 2002 [AN120588]

[4] Mr Foo said that the Agreement does contain some terms and conditions that are less beneficial than those under the reference instruments, including the removal of some allowances not relevant to the applicant’s business. However, the rates of pay mean that Hospitality employees working between 7am and 7pm on Monday to Friday will be better off by between $0.60 and $0.72 per hour and better off by between $0.43 and $0.54 during penalty periods (weekends and between 7pm and 7am). 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.

[5] At a hearing of the application on 19 June 2013, Ms S Garland, Solicitor,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 explained that the applicant’s Hotel operates seven days and stays open late. The rates had been structured to reflect the penalty periods in the award so that employees who work unsociable hours are adequately compensated. She also said that the hotel employs 40 employees and that these are a mix of long term staff and short term overseas employees. She believed the international employees had been somewhat difficult to engage in the bargaining process and this was possibly the reason why the participation in the vote for the Agreement’s approval was low.

[6] However, 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 Sennhart Pty Limited Enterprise Agreement 2013. Pursuant to s 54 of the Act, the Agreement shall operate from 26 June 2013 and have a nominal expiry date of 25 June 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE401859  PR537973>