Ananth Pty Ltd as the Trustee for Rajah Family Trust T/A 7-Eleven

[2015] FWCA 1216

[2015] FWCA 1216

FAIR WORK COMMISSION

DECISION

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

Ananth Pty Ltd as the Trustee for Rajah Family Trust T/A 7-Eleven
(AG2014/10985)

FIRST CHOICE CONVENIENCE ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 20 FEBRUARY 2015

Application for approval of the First Choice Convenience Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the First Choice Convenience Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Commission wrote to the Applicant via its legal representative on 3 February 2015 with respect to concerns it had with the Agreement. In particular, the concerns related to single interest employers, Notice of Employee Representational Rights, penalties, and annual leave loading.

[3] Correspondence was received from the applicant on 10 February 2015.

Single interest employers

[4] The applicant’s F16 lists 16 employers who are to be covered by the Agreement, and the application is for a single enterprise agreement.

[5] The employers are specified in a single interest employer authorisation that is in operation in relation to the Agreement, made by the Commission on 18 November 2014.

Notice of Employee Representational Rights

[6] With respect to the Notice of Employee Representational Rights (NERR), the Commission noted that the submitted NERR, at paragraph one (1) did not contain the names of the employers subject to the Agreement, as required under Schedule 2.1 of the Fair Work Regulations 2009 (the Regulations). A NERR that does not conform with the prescribed form under the Regulations is not a valid notice for the purposes of s.173(1) and s.182(2) of the Act.

[7] The applicant submitted that the NERR provided to the Commission at the time of lodgement of the application is a template document that was provided to all employers that are to be covered by the Agreement to which they were to insert the necessary details. A completed NERR containing the relevant employer details was subsequently disseminated to employees.

Penalties

[8] With respect to the Minimum Wage Rate Schedules, the Commission notes that employees under the Agreement would receive reduced weekend penalty rates when compared with the General Retail Industry Award 2010 and the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Awards) being the relevant awards for the purpose of the better off overall test. The Commission requested the applicant address how employees would be better off overall under the Agreement.

[9] The applicant submits that the higher hourly rate of pay for employees compensates for the lower penalty rates provided under the Agreement. The applicant has provided a number of calculations and indicative rosters to demonstrate that employees working the indicative spread of hours would receive a higher weekly entitlement under the Agreement.

Annual leave loading

[10] With respect to clause 30- Annual leave, and in particular sub clause 30.8, the Commission notes that no annual leave loading is payable under the Agreement. The Commission requested the applicant to address this concern with regard to the better off overall test.

[11] The applicant submits that annual leave loading is incorporated into the hourly rates of pay and provided an analysis of calculations in conjunction with a number of indicative rosters to demonstrate this.

[12] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[13] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 27 February 2015. The nominal expiry date of the Agreement is 4 years from the date of operation.

COMMISSIONER

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