Cambridge Clothing Company Limited T/A Cambridge Clothing

[2015] FWCA 2015

[2015] FWCA 2015

FAIR WORK COMMISSION

DECISION

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

Cambridge Clothing Company Limited T/A Cambridge Clothing
(AG2015/1943)

CAMBRIDGE CLOTHING COMPANY ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 1 APRIL 2015

Application for approval of the Cambridge Clothing Company Enterprise Agreement 2014.

[1] An application has been made for the approval of an enterprise agreement known as the Cambridge Clothing Company Enterprise Agreement 2014 (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 and its legal representative on 17 March 2015, with respect to the application not being accompanied by a signed copy of the Agreement and concerns it had with respect to the better off overall test (BOOT).

[3] Correspondence was received from the applicant on 23 and 24 March 2015.

Signed Copy of the Agreement to accompany the application

[4] Section 185(2)(a) of the Act provides that an application for an enterprise agreement approval must be accompanied by a signed copy of the agreement. The submitted copy of the Agreement did not contain signatures as required under the Act. The Commission noted to the applicant that if the s.185(2)(b) requirement is not met, the application is not a valid application.

[5] Further to the Commission’s correspondence, the applicant has provided a signed copy of the Agreement.

BOOT

[6] With respect to the BOOT, the Commission noted that there are entitlements which are less when compared to the General Retail Industry Award 2010 (the Award) being the relevant Award for the purposes of the BOOT.

[7] The Commission raised concerns with respect to the Agreement not providing annual leave loading, increased maximum hours for full time employees, and no penalty rates for weekends and public holidays. The Commission requested the applicant address these concerns with respect to the BOOT.

Annual leave loading

[8] With respect to sub clause 14.1- Annual leave, the Commission noted that the Agreement does not provide annual leave loading, where the Award provides a 17.5% annual leave loading entitlement.

[9] The applicant submitted that whilst the Agreement does not provide annual leave loading, the Agreement entitlements includes four weeks of annual leave which is paid at the applicable base rate(which is higher than the Award), resulting in employees being better off overall under the Agreement. Further, the applicant provided a number of rosters with a breakdown of calculations with respect to entitlements provided under the Award and the Agreement to support the Agreement passing the BOOT, despite not providing annual leave loading.

Increased maximum hours for full time employees

[10] With respect to sub clause 4.1(a)- Full time employees, the Commission noted that full time employees are engaged to work a maximum of 40 ordinary hours per week under the Agreement, where under the Award, full time employees work a maximum of 38 hours.

Undertaking

[11] In response to the concern raised by the Commission, the applicant has provided an undertaking which states that full time employees will be engaged to work a maximum of 38 ordinary hours per week averaged over a 4 week period.

Penalty rates

[12] With respect to cl.13 - Remuneration, and cl.15- Public Holidays, the Commission noted that the Agreement does not provide penalty rates for weekends and public holidays.
The Commission requested the applicant address the Commission on how employees would be better off under the Agreement, when employees would receive penalties for weekends and public holidays under the Award. In particular, the Commission requested the applicant provide a number of indicative rosters which included a significant number of hours worked on a weekend and a public holiday.

[13] The applicant submitted that the higher remuneration for all employees under the Agreement compensates for the loss of penalties. The applicant submitted a number of indicative rosters with comparative calculations between the Award and the Agreement to support this. In particular, the submitted rosters included employees who work a significant number of hours on the weekend to satisfy the Commission’s concerns regarding weekend penalties.

Undertaking

[14] The applicant has also submitted an undertaking which provides that all employees who work on a public holiday will receive time off in lieu equal to the ordinary hours worked on a public holiday.

[15] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

[16] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

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

[18] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 8 April 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

[19] This decision and undertakings are to be brought to the attention of employees by the applicant.

COMMISSIONER

Annexure A

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