Betts Group Pty Ltd T/A Betts

[2020] FWCA 2095

[2020] FWCA 2095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

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

BETTS GROUP AGREEMENT 2019

Retail industry
COMMISSIONER PLATT	ADELAIDE, 23 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 Applicant). 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] Following the Hearing, on 17 April 2020 I issued an interim Decision. 1 I was not persuaded that the Agreement had met the better off overall test (BOOT), particularly as a result of the capacity to roster (by agreement) casual employees over 6 days of the week. The Applicant was given until 23 April 2020 to submit a revised undertaking.

[7] A revised undertaking was submitted in the required form dated 21 April 2020. The undertaking deals with the following topics:

•  The Applicant will not engage shift workers.

•  A permanent employee will be entitled to 2 days or shifts of paid compassionate leave when a member of the employee’s immediate family or household contracts or develops a personal illness that poses a serious threat to his or her life, or sustains a personal injury that poses a serious threat to his or her life.

•  A casual employee will be entitled to 2 days of unpaid compassionate leave when a member of the employee’s immediate family or household contracts or develops a personal illness that poses a serious threat to his or her life, or sustains a personal injury that poses a serious threat to his or her life.

•  In relation to clause 28.2 and 28.3 (Emergency Services Leave), time off for attendance to emergencies in the local area, and not in the local area, will not be unreasonably restricted nor accessed.

•  In a redundancy case, if the Applicant obtains an offer of alternative employment for an employee, it will apply to the Fair Work Commission to seek approval under s.120 of the Act to vary any redundancy pay.

•  An employee will not be entitled to notice where their employment is terminated because of serious misconduct.

•  In relation to clause 38 (Abandonment of Employment), the Applicant may deem that the employee has abandoned their employment if they fail to attend work for more than 3 working days or shifts in a row without notification or explanation and the Applicant has made genuine and reasonable attempts to contact the employee.

•  In relation to clause 9.2, a part-time employee is an employee engaged on weekly hire to work an agreed number of ordinary hours being less than 38 ordinary hours per week with a minimum of 6 hours per week and has reasonably predictable hours of work.

•  In relation to clause 15.3.1, a part-time employee will be rostered to work less than 38 ordinary hours per week, a minimum of 6 hours per week and a minimum of 3 consecutive hours per shift.

•  In relation to clause 12.4, penalty rates will be effective from 1 October 2020.

•  In relation to clause 12.4, where higher duties relate to an employee performing duties such as opening and closing the premises and associated security including cash handling, the higher duty rate will be paid as per the higher classification in the General Retail Industry Award 2010 (the Award).

•  In relation to clause 14.3 (Superannuation), the Applicant will pay superannuation for any period that an employee is absent on paid leave.

•  In relation to clause 14.4 (Superannuation), the Applicant will pay superannuation for the period of absence from work (subject to a maximum of 52 weeks) of the employee due to a work related injury or illness, provided that the employee is receiving workers compensation payments or is receiving regular payments directly from the employer in accordance with the statutory requirements and remains employed by the employer.

•  In relation to clause 14.2 (Superannuation), the Applicant will make superannuation contributions to a fund nominated by the employee with the default fund being REST.

•  In relation to clauses 15.2(c) and 15.3(d), an employee may be rostered a maximum of 20 days in any four week cycle. In retail stores employing 15 or more employees on a regular basis per week (unless specific agreement exists between the Applicant and employee to the contrary), an employee will not be required to work ordinary hours on more than 19 days on each four week cycle.

•  Clauses 15.4(c) and 15.5 have been deleted.

•  In relation to clause 18.3 (Overtime), there is no requirement for overtime to be authorised.

•  In relation to clause 18.8, time off in lieu (TOIL) will be paid out on termination.

•  In relation to clause 19.6 (Annual Leave), the Applicant may reasonably direct an employee to take annual leave by giving at least 8 weeks but no more than 12 months’ notice. Any direction must result in the employee retaining a leave balance of 6 weeks.

•  Clause 19.12 (Cashing Out Annual Leave) of the Agreement is replaced by clause 32.5 of the Award.

•  Clause 31.11 (Transfer to Lower Paid Duties) of the Agreement is replaced by clause 15.1 of the Award.

•  In relation to clause 32.2(b), a maximum of one week’s wages may be withheld from employees who are at least 18 years old.

•  Clause 13 is varied to include the recall allowance as per clause 20.10 of the Award.

•  Clause 28.12(e) of the Award is included in the Agreement as clause 16.3(g).

•  An employee with an excessive leave balance may request to take annual leave, at a time mutually agreed.

•  Wage rates will apply at test time.

•  The Applicant will not roster casual employees over 6 days of the week.

[8] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[9] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[10] 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) of the Act I note that the Agreement covers this organisation.

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

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

 1   [2020] FWC 2016

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