Betts Group Pty Ltd T/A Betts

[2020] FWC 2016

[2020] FWC 2016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Betts Group Pty Ltd T/A Betts
(AG2020/414)

COMMISSIONER PLATT ADELAIDE, 17 APRIL 2020

Application for approval of the Betts Group Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Betts Group Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Betts Group Pty Ltd T/A Betts. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 26 February 2020.

[3] On 11 March 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement raised by both the Commission and the Shop, Distributive and Allied Employees Association (the SDA), who was a default bargaining representative, and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant provided a number of undertakings which were the subject of email correspondence and an effort for them to satisfactorily address the issues raised.

[5] On 3 April 2020, as a result of a number of outstanding issues, I conducted a telephone Hearing in relation to the application. Mr Andrew Breckler represented the Applicant, and Mr Matthew Galbraith represented the SDA.

[6] The outstanding issues were discussed including a concern raised by the SDA that clause 15.4(c) of the proposed Agreement was in conflict with clause 28.10 of the General Retail Industry Award 2010 and as a result the Agreement would not meet the better off overall test (BOOT). It should be noted that the Commission’s modelling indicates that the Agreement rates of pay exceed the Award by a slim margin (refer to table below). As a result, any expansion of ordinary hours which would result in a loss of overtime or any other disadvantage will result in the BOOT not being met.

Modern Award Classification	Agreement Classification	Modern Award Rate	Agreement Rate	Percentage Difference
Level 1	Sales Consultant	$21.41	$21.42	0.05%
Level 4	Assistant Manager	$22.70	$22.71	0.04%
Level 6	Store Manager	$23.97	$23.98	0.04%

[7] The Applicant contended that clause 28.10 of the Award did not apply to casual employees and thus clause 15.4(c) of the proposed Agreement did not operate to disadvantage casual employees. The SDA disputed this contention and detailed its reasoning in an email on 3 April 2020.

[8] The Applicant was invited to submit a revised undertaking. In order to assist the parties, it was suggested that the Applicant may wish to provide an undertaking that clause 28.10 of the Award would apply to persons employed under the Agreement.

[9] The final undertaking was received on 6 April 2020 and was dated 3 April 2020. The undertaking was accompanied by a submission that reiterated the Applicant’s view that clause 28.10 of the Award had no application to casual employees.

[10] The Applicant has not persuaded me that the Agreement passes the BOOT, particularly as a result of the capacity to roster (by agreement) casual employees over 6 days of the week. As a result, the obligations under s.186(2)(d) of the Act have not been met and thus in the absence of an amended undertaking the application for approval of the Agreement must fail.

[11] Should the Applicant not provide a suitable undertaking by 4.00pm on Wednesday 22 April 2020, I will publish an order dismissing the application.

COMMISSIONER

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