Bunnings Group Limited

[2013] FWCA 6614

[2013] FWCA 6614

FAIR WORK COMMISSION

DECISION

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

Bunnings Group Limited
(AG2013/7603)

BUNNINGS WAREHOUSE/SMALL FORMAT STORES AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 5 SEPTEMBER 2013

Application for approval of the Bunnings Warehouse/Small Format Stores Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Bunnings Warehouse/Small Format Stores 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.

Ordinary hours

[2] The Commission notes that the Agreement at clause 10 - Ordinary hours of work, and in particular, sub clause 10.2 provides for ordinary hours of work that is greater than the ordinary hours of work provided for in the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[3] The Applicant (Bunnings Group Limited) submits that it relies upon sub clause 27.2(b)(iii) of the Award that provides in the case of retailers whose trading hours extend beyond 9.00pm Monday to Friday or 6.00pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00pm.

Meal allowance

[4] The Commission notes that the Agreement provides a meal allowance of $13.78 from 1 July 2013, and where a team member continues to perform work overtime for more than five hours the employer shall provide a meal or pay an allowance of $13.37. The Award at sub clause 20.1(a) provides a meal allowance of $16.67 where an employee is required to work more than one hour of overtime after the employee’s ordinary time of ending work and where such overtime exceeds four hours a further meal allowance of $15.09 will be paid.

[5] The Applicant has advised that it is quite uncommon that team members are required to work a shift length that requires the provision of a meal or meal allowance and that when they do, the Applicant typically provides team members with a meal. Furthermore, the Applicant also advised the Commission that team members under the Agreement are entitled to double time when they work more than 10.5 hours in a day, whereas under the Award the overtime rate is time and a half for the first three hours.

[6] Upon review of the Applicants correspondence with respect to the ordinary hours of work and meal allowance, I am satisfied that employees under the Agreement would be better off overall.

Consultation Term

[7] The Commission advised the Applicant and the Shop, Distributive and Allied Employees Association (SDAEA) and the Australian Workers’ Union (AWU) being bargaining representatives for the Agreement that the consultation term found at clause 41 of the Agreement was not consistent with the terms that must be included pursuant to s.205(1) of the Act.

[8] The Act requires that a consultation term must allow for the representation of those employees for the purposes of that consultation. The consultation term in the Agreement allows for the affected team members to appoint the Union to represent them.

[9] I note that the Applicant has offered to provide an undertaking to acknowledge that affected team member(s) may appoint a person other than the Union to represent them. However, s.190 of the Act, which concerns the circumstances in which the Commission may approve an enterprise agreement with undertakings, only applies where the Commission has a concern that an enterprise agreement does not meet the requirements set out in ss.186 and 187 of the Act. The requirement to have a consultation term arises in s.205 of the Act.

[10] As the Agreement does not contain a consultation term that meets the requirements as set out at s.205(1) of the Act. Pursuant to s.205(2), the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure A.

[11] The Agreement covers employees working at Bunnings Warehouses and Small Format Stores throughout Australia. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[13] The SDAEA and the AWU being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[14] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 12 September 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Annexure A

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