Australian Geographic Retail Pty Ltd T/A Australian Geographic

[2014] FWCA 6582

[2014] FWCA 6582

FAIR WORK COMMISSION

DECISION

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

Australian Geographic Retail Pty Ltd T/A Australian Geographic
(AG2014/1438)

AUSTRALIAN GEOGRAPHIC RETAIL ENTERPRISE AGREEMENT 2014-2017

Retail industry
COMMISSIONER BULL	SYDNEY, 19 SEPTEMBER 2014

Application for approval of the Australian Geographic Retail Enterprise Agreement 2014-2017.

[1] An application has been made for approval of an enterprise agreement known as the Australian Geographic Retail Enterprise Agreement 2014-2017 (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.

Coverage of the SDA

[2] On 23 July 2014, the Shop, Distributive and Allied Employees Association (SDA), sent correspondence to the Commission to advise that the SDA had an interest in and a number of concerns about the terms of the Agreement. The SDA sought an opportunity to address the Commission in relation to their concerns.

[3] This was brought to the attention of the Applicant.

[4] On 5 August 2014, the SDA sent correspondence outlining their concerns with the Agreement and to advise the Commission that it sought to be covered by the Agreement, pursuant to s.183(1) of the Act.

[5] The SDA was asked to provide evidence that at the time of bargaining, it had a member to be covered by the Agreement. The SDA provided to the Commission a payslip of a member to demonstrate it had a member at the time of bargaining.

[6] The Applicant advised the Commission on 26 August 2014, that it had confirmed that the SDA had a member during the bargaining process but submitted that the member did not appoint the SDA as their bargaining representative during the negotiations for the Agreement and therefore the SDA does not have jurisdiction to act as a bargaining representative or to be covered by the Agreement under s.183 of the Act.

[7] Following a conference held with the Applicant 28 August 2014, the Commission advised the Applicant that s.176(1) of the Act sets out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement.

[8] Pursuant to s.176(1)(b) it states that an employee organisation is a bargaining representative of an employee who will be covered by the agreement if the employee is a member of the organisation, unless the employee has appointed another person under s.186(1)(c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

[9] It has not been submitted that the member of the SDA had appointed another person as his or her bargaining representative or had revoked the status of the organisation as his or her bargaining representative.

[10] Pursuant to s.176(1)(b) of the Act, I am satisfied that the SDA is a bargaining representative for the purpose of this Agreement, despite not having played a role during the negotiations for the Agreement.

Better off overall test

[11] The Commission raised a number of concerns with the Applicant it had in relation to the terms of the Agreement when compared to the General Retail Industry Award 2010 (the Award), for the purpose of the better off overall test. The SDA in its correspondence dated 5 August 2014 also raised additional concerns it had identified.

[12] The concerns related to the ordinary span of hours, overtime, penalties allowances, annual leave and compassionate leave.

Undertakings

[13] With respect to clause 1.2 - Definitions, and in particular, sub clause 1.2(j) the ordinary hours are defined as 152 hours per 4 week period for a full-time Team Member and the ordinary average rostered hours per 4 week period for a part-time Team Member. The Agreement does not provide for a span of ordinary hours.

[14] Upon request from the Commission the Applicant has provided an undertaking that the span of ordinary hours will be the span of ordinary hours provided under the Award.

[15] With respect to clause 5.6 - Overtime, and in particular, sub clause 5.6(g) it provides that overtime will be paid at the rate of 150% of the Team Members’ ordinary rate of pay for the first 6 hours that overtime is incurred in a fortnightly pay cycle and 200% thereafter. This overtime provision under the Agreement appeared to be less than the entitlement an employee who worked overtime would have been afforded under the Award.

[16] The Applicant has provided an undertaking that for the purposes of clause 5.3 - Retail Team Members - General Principles as to Working Hours, that the Applicant will not require any Team Member to work overtime for more than 3 hours in any week, other than in respect of Team Members who are store managers, and then only where more than 3 hours in any week of overtime is required as a result of a new store opening.

[17] With respect to sub clause 5.3(i) it provides that an employee’s roster may include split shifts. The Award does not provide such a provision. The Applicant has provided an undertaking that this clause will not be applied and has no effect.

[18] With respect to clause 6.1 - Meal Allowance, a Team Member who is required to work at least two hours overtime and who receives less than 24 hours notice, will be paid a meal allowance of $16.15, unless a meal is provided by the Applicant. The meal allowance provided under the Agreement is less than the allowance an employee would have been afforded under the Award.

[19] The Applicant has provided an undertaking that it will pay meal allowances at the same rate as provided under the Award.

[20] With respect to clause 6.4 - Pay and Penalty Rates, it provides that a team member will receive their ordinary rate of pay for each hour worked on Monday to Saturday. The Award provides for a penalty to be paid to an employee where work is undertaken on a Saturday. Modelling undertaken by the Commission demonstrated that employees may not be better off overall where they work on weekends.

[21] The Applicant has provided an undertaking that it will pay the following percentages of retail Team Members ordinary rate of pay for each hour worked on Saturdays in lieu of 100% as specified in clause 6.4:

● for retail Team Members that are store managers or assistant store managers - 115% of their ordinary rate of pay; and
● for retail Team Members that are part time or casual - 125% of their ordinary rate of pay.

[22] The SDA raised concerns with respect to the wording on Schedule 3B - Annual Leave Policy, and in particular, that the approval of annual leave may depend on supporting evidence of a workforce plan to cover the duties of the team Member taking leave. The SDA submits that it is unreasonable for an employer to require supporting evidence of a workforce plan to be granted leave approval.

[23] The Applicant has provided an undertaking that applications for annual leave will be considered consistently with the principles outlined in s.88(2) of the Act which provides that the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

[24] With respect to clause 8.6 - Compassionate Leave, and in particular, sub clause 8.6(a), the Applicant has provided an undertaking that a Team Member’s entitlement to compassionate leave will apply in the case of the death, serious illness or injury that poses a serious threat to their life of any member of the Team Member’s household in the same manner as compassionate leave applies in respect of a Team Member’s immediate family member.

[25] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[26] Pursuant to s.190(4) of the Act, the SDA has been made aware of the undertakings provided. The SDA were provided with an opportunity to make any comment in relation to the undertakings. Upon review of the undertakings provided by the Applicant, the SDA has advised the Commission that it does not oppose the approval of this Agreement.

[27] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[28] Upon review of the correspondence and undertakings I am satisfied that employees would be better off overall under the Agreement.

[29] The Shop, Distributive and Allied Employees Association being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers this organisation.

[30] 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.

[31] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 26 September 2014. The nominal expiry date of the Agreement is 30 June 2017.

[32] This decision is to be brought to the attention of the employees.

COMMISSIONER

Annexure A

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