Bianchini (Glenunga) Pty Ltd

[2014] FWCA 4203

[2014] FWCA 4203

FAIR WORK COMMISSION

DECISION

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

Bianchini (Glenunga) Pty Ltd
(AG2014/567)

BIANCHINI (GLENUNGA) PTY LTD ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	PERTH, 25 JUNE 2014

Application for approval the Bianchini (Glenunga) Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Bianchini (Glenunga) Pty Ltd Enterprise Agreement 2013 (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 representative on 28 March 2014, in relation to a number of concerns it had with the Agreement. In particular, the concerns related to the span of ordinary hours, casual loading, penalties, annual leave and personal leave.

[3] Correspondence was received from the Applicant on 11 and 28 April, 21 and 22 May and 6 June 2014.

Undertakings

Span of ordinary hours

[4] In its correspondence to the Applicant, the Commission noted that the Agreement did not provide a span of ordinary hours. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test at clause 27.2 provides for the following span of ordinary hours:

● Monday to Friday: 7:00am to 9:00pm
● Saturday: 7:00am to 6:00pm
● Sunday 9:00am to 6:00pm

[5] An undertaking has been provided by the Applicant that the span of ordinary hours under the Agreement will fall within the Award’s span of ordinary hours as outlined above.

Casual loading

[6] With respect to clause 24 - Casual Employee, of the Agreement, it states that a casual employees minimum hourly rate of pay will include in addition to the full time employee rate, a casual loading of 24% as at 1 July 2013 and will be capped at 25% on 1 July 2014. Upon calculations undertaken by the Commission the casual rates of pay appeared to be less than 24% of the full time hourly rate of pay for each classification.

[7] The Applicant has provided an undertaking that the hourly rate structure for casual employees will include 24% in addition to the full time rate of pay. Further, in accordance with clause 24 of the Agreement, the casual loading will increase to 25% on 1 July 2014.

Penalties

[8] In its correspondence to the Applicant the Commission noted that the Agreement provides at Schedule A - Classification Structure and Wage Rates, for an hourly rate of pay for ‘other times’ and requested clarification as to what this referred to and asked the Applicant to provide a number of indicative rosters and calculations as the Agreement appeared to provide weekend and public holiday penalties that were less than those under the Award.

[9] Further, in its application the Applicant had provided a spreadsheet entitled ‘IFA Rate Summary Sheet’ containing calculations and rosters to demonstrate employees were better off overall under the Agreement. The Commission informed the Applicant that any calculations provided should be based on the rates of pay and entitlements employees would receive under the Agreement as the Commission cannot take into consideration the entitlements employees receive as part of an individual flexibility arrangement when considering the better off overall test.

[10] On 11 April 2014, the Applicant provided correspondence and a number of indicative rosters and calculations to demonstrate employees are better off overall despite the penalties being less than the Award. The Applicant advised that the ‘other times’ rate of pay referred to weekends and public holidays.

[11] Upon review of the indicative rosters and calculations provided by the Applicant, the Commission informed the Applicant on 28 April 2014, that some employees would not be better off overall under the Agreement. In particular, as the Agreement provides loaded flat rates for work on weekends which are lower than the Award, an employee who works regular Sunday shifts would be worse off under the Agreement.

[12] On 21 May 2014, the Applicant’s representative submitted that while the Applicant agreed the indicative rosters and calculations show that some employees will not be better off under the Agreement, there will be some ‘unders and overs’ throughout the year but it is the Applicant’s intent to balance this out so that no-one fails the better off overall test. Further, the Applicant’s representative advised that whilst the examples the Commission provided show that some employees will not meet the better off overall test a spreadsheet was provided by the Applicant that shows other employees would be paid in excess to the Award entitlement.

[13] On 22 May 2014, the Commission advised the Applicant that based on the correspondence and undertakings currently before the Commission the application would be dismissed, however, the Applicant was invited to submit proposed undertakings to ensure that all employees covered by the Agreement would be better off overall at the time of the approval.

[14] On 6 June 2014, the Applicant provided the Commission with revised rosters, calculations and undertakings. The Applicant advised the Commission that it had now changed its rostering system to ensure all employees covered by the Agreement will be better off overall at the time of approval.

[15] The Applicant has provided an undertaking that all employees covered by the Agreement will be better off overall than under the Award provisions at the time of the approval of this Agreement.

[16] Based on the indicative rosters and calculations provided by the Applicant, I am satisfied that employees are better off overall under the Agreement.

Annual Leave

[17] An undertaking with respect to clause 31 - Annual Leave, and in particular, the accrual of annual leave in accordance with the National Employment Standards has been provided by the Applicant.

Personal Leave

[18] An undertaking with respect to clause 33 - Personal and Compassionate Leave, and in particular, the accrual of personal and compassionate leave in accordance with the National Employment Standards has been provided by the Applicant.

[19] The Applicant has advised the Commission that a copy of the undertakings will be displayed with the Agreement and a copy provided whenever requested.

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

[21] I have sought the views of the bargaining representatives, in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertakings provided.

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

[23] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 2 July 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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