Associated Retailers Ltd

[2013] FWCA 5537

[2013] FWCA 5537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Associated Retailers Ltd
(AG2013/6238)

ARL (VIC) ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER WILSON	MELBOURNE, 9 AUGUST 2013

Application for approval of the ARL (VIC) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the ARL (VIC) Enterprise Agreement 2013 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Associated Retailers Ltd (ARL). The agreement is a multi-enterprise agreement.

[2] The application is one of three multi-enterprise applications by the same applicant, ARL. Each application seeks approval of a multi-enterprise agreement in similar, but not identical terms. Each agreement applies in a single State, respectively New South Wales (AG 2013/6208), Victoria (AG 2013/6238), and Queensland (AG 2013/6224) (the Agreements). The applications cover 12 employer parties with the material before me indicating between two and eight people are employed by the employers covered by the Agreements. The table below shows the business names and entities named in each of the applications.

AG2013/6208 (NSW)	Sportspower Bathurst	Macming Pty Ltd
	Toyworld Tweed Heads	Ayanjay Pty Ltd
	Compleat Angle, Wagga Wagga	Lymawn Pty Ltd
	Sportspower Armidale	Sportsmood Pty Limited ATF The Schmude Family Trust
AG2038/6224 (Queensland)	Sportspower, Bowen	Shaham Investments Pty Ltd ATF Lane Discretionary Trust
	Davo's Compleat, Angler Noosa	Wells Enterprises (QLD) Pty Ltd ATF Wells Business Trust
AG2013/6238 (Victoria)	Toyworld, Warrnambool	Coldshore Pty Ltd ATF Sedgley Family Trust
	The Joker Shop	The Joker Shoppe Pty Ltd ATF Albanese Family Trust
	Sportspower Rosebud	Swagemakers Pty Ltd ATF The Swagemakers Family Trust
	Compleat Angler & Camping World, Dandenong	Great Catch Pty Ltd ATF GJR Family Trust
	Compleat Angler Ringwood	Gotta Bite Pty Ltd ATF Loft Family Trust

[3] The wage arrangements contained in each of the Agreements include four minimum wage schedules numbered as Wage Options A to D.

[4] Option A includes wage rates that apply to all hours of work during the week, including work performed in ordinary hours on weekends, public holidays and at night. Wage Option B sets out two sets of wage rates; firstly for any time worked on any hour of the day Monday to Friday; and secondly rates applicable for time worked on weekends and public holidays. Wage Option C is similar to option B with the difference being that the first set of wage rates apply to any time worked in ordinary time Monday to Saturday inclusive; and the second set of wage rates applies to work performed in ordinary hours on Sundays and public holidays. Wage Option D specifies different rates for time worked in ordinary hours up to 6 PM on Monday to Friday, with an additional loading for time worked after 6 PM. Wage Option D then specifies different wage rates for work performed on Saturdays, Sundays and public holidays.

[5] An employer bound to one of the proposed Agreements may employ staff under any of the wages options. That is, the one employer might have employees working under any or all of the options. It became evident during the approval process that the employer parties to the Agreement contemplated being able to move an employee, with their consent, from one wages option to another during the course of the employee’s employment.

[6] Application of the Better off Overall Test requires me to be satisfied that each award covered employee, and each prospective award covered employee would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee. 1

[7] Application of the test has meant that approval of each of the Agreements was only possible after the provision to me of undertakings by each employer covered by the prospective agreements on several subjects, which I have accepted. Undertakings may be accepted where the Fair Work Commission has a concern that the Agreement does not meet the approval requirements set out in sections 186 and 187 of the Act. 2

[8] The undertakings provided by the employers covered by these proposed Agreements deal with five subjects as follows:

a) The possibility that in certain circumstances a person employed under wage Option A, who is rostered to work more than half their standard hours of work on weekends might not be better off overall. This possibility has been remedied by the employers in all States giving an undertaking to the effect that in such circumstances an employee shall, for the relevant period (namely a four week averaging cycle), be paid no less than the wages calculated in accordance with Minimum Wage Schedule Option D.

b) A concern on my part that employees might be worse off as a result of the approval of the Agreement through a lack of certainty as to the wages which apply to them at any given time, or that a unilateral change by the employer in the wage option applying to the employee might mean the employee is worse off than at the time either the Agreement was made, or when they commenced employment after the Agreement was approved. This concern has been remedied by each employer in all States undertaking that:

i. each employee will be provided with a Letter of Engagement prior to commencing employment. Submissions by ARL, which I have accepted and taken into account in this decision, included that such a letter would be provided to persons employed at the time of approval of the Agreement, as well as to new employees, and that in all cases it will specify the wages Option that applies to the individual employee;

ii. any change to the wages Option specified in the employee’s letter of engagement must be with the employee’s express written consent; and

iii. that an employee is under no obligation to provide their consent to any change to their nominated minimum wage rate schedule and shall be so advised by the employer.

c) The possibility that in Victoria casual employees engaged under wages Option D might not be better off overall with the approval of the Agreement. This possibility has been remedied by the Victorian employers providing an undertaking that increased casual wage rates will apply to persons employed under option D.

d) A concern on my part that a provision in the Dispute Settlement Procedure appearing in all Agreements might leave employees exercising their rights under the provision worse off than if they were working under Modern Award. Clause 6.3 of each of the Agreements specifies that where discussions between an employee, their supervisor and the employer’s management do not resolve a dispute “the matter may be referred to an agreed private independent mediator for mediation, the cost of which are (sic) to be split equally between the parties unless otherwise agreed”. My concern that an employee may be worse off through a provision of the Agreement has been remedied by each employer under each Agreement undertaking that clause 6.3 of each of the Agreements shall have no effect and will not be relied upon.

e) A concern on my part that the terms of clause 34 of each of the Agreements, entitled “Set-off” might leave the employee worse off than if they were working under the Modern Award. The terms of clause 34 provide that employees agree certain amounts constitute a debt owed to the employer under the Agreement. These include the reasonable cost of repair or replacement of lost or damaged property; overpayments to the employee; the cost of retail product ordered by the employee; and a failure by the employee to give the requisite notice of termination of employment. The clause purports to say that each employee agrees to repay, and authorises the employer to deduct from monies the employer owes, such amounts the employer would otherwise be due to pay the employee. My concern that an employee may be worse off through this provision has been remedied by each employer under each Agreement undertaking that clause 34 of the Agreement shall have no effect and will not be relied upon.

[9] I have accepted the undertakings attached to this decision which have been given by the employer.

[10] I am satisfied that each of the requirements of ss.186, 187, 188 and s.190 as are relevant to this application for approval have been met.

[11] The Agreement does not contain a flexibility provision in the terms of s.202 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2013. The nominal expiry date of the Agreement is 8 August 2014.

COMMISSIONER

 1   Fair Work Act, section 193(1)

 2   Section 190(1)(b)

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