Bunnings Group Limited

[2013] FWCA 9340

[2013] FWCA 9340

FAIR WORK COMMISSION

DECISION

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

Bunnings Group Limited
(AG2013/10082)

SDA RETAIL TRADE VICTORIA AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 27 NOVEMBER 2013

Application for approval of the SDA Retail Trade Victoria Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the SDA Retail Trade Victoria 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.

Meal allowance

[2] The Commission notes that the Agreement provides a meal allowance of $14.17 from approval of this Agreement and where a team member continues to perform overtime for more than five hours the employer shall provide a meal or pay an allowance of $14.17.

[3] The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test 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.

[4] The Applicant (Bunnings Group Limited) 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.

Ordinary hours

[5] The Commission notes that the Agreement at Part 5 - Hours of work, and in particular, sub clause 5.1 provides for ordinary hours of work that is greater than the ordinary hours of work provided for in the Award.

[6] The Applicant submits its trade sites are closed on the weekends and typically trade from 6:30am to 5:00pm, Monday to Friday.

[7] The Applicant has submitted rosters and calculations to demonstrate employees are better off overall despite the increase in the span of ordinary hours.

[8] Upon review of the Applicant’s 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

[9] The Commission advised the Applicant and the Shop, Distributive and Allied Employees Association (SDAEA) being a bargaining representative for the Agreement that the consultation term found at clause 8.13 of the Agreement was not consistent with the terms that must be included pursuant to s.205(1) of the Act.

[10] The Act requires that a consultation term must allow for the representation of employees for the purposes of consultation. This representation is unrestricted, whereas, the consultation term in the Agreement provides for the affected team members to appoint to SDAEA to represent them.

[11] 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.

Individual Flexibility term

[12] In its correspondence to the Applicant and the SDAEA, the Commission requested correspondence outlining what additional flexibility is provided by clause 8.14 - Individual Flexibility Agreements, and in particular, sub clause 8.14(a)(iii).

[13] The Applicant concedes that sub clause 8.14(a)(iii) appears to cover matters that can already be altered under the Agreement.

[14] However, the Applicant submits that where the flexibility term attempts to alter sub clause 5.2(b) (rosters) of the Agreement, the minimum number of rostered ordinary hours per day could conceivably be reduced to less than four hours for a full-time team member and less than three hours for a part-time or casual team member and that such outcome would not be permitted without the additional flexibility conferred by sub clause 8.14 of the Agreement.

[15] With respect to the flexibility term attempting to vary sub clause 6.2(d) (annual leave) of the Agreement, the Applicant acknowledges that this does not confer any additional flexibility.

[16] No correspondence was received from the SDAEA.

[17] The Agreement covers employees employed at Bunnings Trade Centres at Laverton and Somerton. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[18] 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.

[19] The SDAEA being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to it. In accordance with s.201(2) I note that the Agreement covers these organisations.

[20] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 4 December 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Annexure A

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