AJ Convenience Services Pty Ltd T/A 7-Eleven Rozelle & 7-Eleven Bexley

[2016] FWCFB 2116

[2016] FWC 330 [Note: An appeal pursuant to s.604 (C2016/2365) was lodged against this decision - refer to Full Bench decision dated 5 May 2016 [[2016] FWCFB 2116] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AJ Convenience Services Pty Ltd T/A 7-Eleven Rozelle & 7-Eleven Bexley
(AG2015/6175)

Vehicle Industry

COMMISSIONER ROE MELBOURNE, 18 JANUARY 2016

Application for approval of the 7-Eleven Fuel and Non-Fuel Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the 7-Eleven Fuel and Non-Fuel Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AJ Convenience Services Pty Ltd T/A 7-Eleven Rozelle & 7-Eleven Bexley(the employer). The Agreement is a single enterprise agreement.

[2] For the reasons outlined below I am not satisfied that the concerns raised by the Fair Work Commission (the Commission) concerning the BOOT have been met by the provisions of the undertakings offered by the company.

Fair Work Commission’s initial concerns

[3] On 7 December 2015 the Commission sent correspondence to the Applicant’s representative raising the following concerns:

● The Agreement signature page did not meet the requirements of the Fair Work Regulations 2009
● The consultation term at clause 25 of the agreement did not meet the requirements of the Fair Work Act 2009 (the Act)
● Compassionate leave at clause 19.8 of the agreement appeared to contradict section 89(2) of the Act
● Rates of pay in the Agreement did not appear to be high enough to compensate for reductions to modern award entitlements.

Applicant’s response

[4] On 10 December 2015 the Applicant responded providing updated signatory information and an acceptable undertaking in respect to compassionate leave. They also submitted that typical rosters showed employees would on balance be better off overall.

Preliminary findings

[5] On 14 December 2015 I advised the applicant that, after having considered the submissions made, my concerns remained. I advised the applicant that I intended to list the matter for E-hearing on 16 December 2015, at which time I would not approve the agreement. I requested that, should the applicant wish to make further submissions and have the matter listed for attendance hearing, to please provide written submissions by no later than close of business 15 December 2015. Further submissions were received from the Applicant but I was not satisfied that the loaded hourly rates were sufficient to ensure that employees who worked a considerable proportion of their working hours on weekends would be better off overall.

[6] On 15 December 2015 the Commission received a Form F53, ‘Notice of representative commencing to act’ from Moray and Agnew Lawyers. I considered the matter would be dealt with more efficiently if I allowed the Applicant to be legally represented.

Attendance hearing

[7] At the hearing of this matter on 8 January 2016 the employers sought to rely on typical or model rosters to demonstrate that the loaded hourly rates were sufficient to ensure that the BOOT was met. However, consistent with the Full Bench decision in United Voice v Secom Australia Pty Limited T/A SECOM Security [2015] FWCFB 1776 it is necessary to consider what the Agreement allows to be done in respect to rosters not just what occurs under typical rosters to be sure that each employee and prospective employee is better off overall at the test time. The potential for calculations to be affected by changed or less typical rostering practices must be taken into account. Given that the 7-eleven stores operate 24 hours per day the potential for varied roster arrangements is considerable and arrangements where an employee might work a large proportion of their hours at night and weekend are not fanciful. Therefore I requested an undertaking which limited the proportion of work which can be on the weekends to ensure that employees on a loaded rate would be better off overall regardless of the particular roster.

[8] At the hearing, after considering the Applicant’s submissions, I clarified the undertakings which would be required if the Agreement was to be approved. The employer agreed to provide undertakings that restricted the proportion of hours that casual, full-time and part-time employees can work on the weekend to ensure that they are better off overall. The employer also agreed to provide undertakings regarding compassionate leave, that employee’s would receive seven days’ notice of rosters and that the restriction on public holiday payment in the event of absence on the day before or after a public holiday would not apply.

[9] The Shop, Distributive and Allied Employees Association (the SDAEA) raised concerns in relation to clause 13.4 which provides that where an employee is absent from employment on the working day before or after a public holiday without reasonable excuse and without the consent of the employer, the employee shall lose the entitlement to payment for one public holiday, clause 7.7 to 7.10 which only provides for rosters to be displayed in advance and clause 9 which deals with rest breaks and the breaks between shifts; these concerns were taken into account at the hearing; however as the SDAEA has not asserted they are bargaining representatives for the agreement they were not requested to participate in the hearing.

Undertakings by the Applicant

[10] Consistent with the hearing on 8 January 2016 the Applicant provided undertakings for the Commission’s consideration. The undertakings, except for the one concerning loaded rates, were acceptable. The undertaking concerning loaded rates did not meet the requirements clearly specified at the hearing on 8 January 2016. However, I decided to explain the deficiency to the employer and give them a further opportunity to provide an acceptable undertaking. A further undertaking was provided but it still does not meet the requirements specified.

[11] The initial undertaking provided to the Commission set out that:

“An employee who is rostered to work more than 50% of their ordinary hours on weekends, or one third of their ordinary hours on a Sunday, may request that the employer carry out a reconciliation to ensure that the take home pay for an calendar month was more than the employee would have been entitled to under the relevant award. Such requests must be made in writing within 7 days of the expiry of the previous calendar month. If the employee has received less than what they would have had the award applied, then any shortfall will be paid to the employee excepting if the employee requested a particular roster to meet their own personal needs or commitments during the period, and this resulted in the net financial disadvantage”

[12] This undertaking does not ensure that employees are better off overall under the Agreement. If an employee is unaware that they have received less than the Award and or fails to make a request to the employer for a reconciliation then they will not be better off overall. Furthermore it is a matter for the employer to determine if there is any shortfall. How this calculation is to be made and what factors are to be included is not specified. The Agreement on its terms does not ensure that the employees are better off overall. Further, if an employee works 40% of their hours on weekends they will be significantly worse off than they would be under the Award and the undertaking only addresses cases where more than 50% of the hours are on weekends. The exclusion of cases where the employee requested to work the hours is not consistent with the Full Bench decision which determined that voluntary additional hours were not a consideration in respect to the BOOT. The test relates to what the Agreement permits when compared to the Award and the issue of whether or not the hours worked are voluntary or not is not relevant unless the variation is subject to the safeguards of an individual flexibility agreement.

[13] The subsequent undertaking provided to the Commission set out that:

“Full Time employees will only be rostered to work a maximum of 24 hours on Sundays over a four week period or, for Part Time or Casual employees, a maximum number of hours on a Sunday calculated as a proportion of the hours that they have been rostered to work over a four week period”

[14] I made it clear in the hearing of this matter that an undertaking was required which restricted the amount of work on weekends to a percentage of total hours worked over a reasonable roster period and the percentage should be calculated to ensure that employees would be better off overall. The percentage in the offered undertakings is much too high to ensure that employees will be better off overall.

[15] Modelling conducted on the basis of the undertaking provided to the Commission is attached at Annexure A.

[16] As acceptable undertakings were not provided the Application is dismissed.

COMMISSIONER

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ANNEXURE A