Charles Porter and Sons Pty Ltd

[2014] FWCA 890

[2014] FWCA 890

FAIR WORK COMMISSION

DECISION

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

Charles Porter and Sons Pty Ltd
(AG2013/10447)

PORTERS ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 5 FEBRUARY 2014

Application for approval of the Porters Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Porters 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] On 7 January 2014, the Commission wrote to the Applicant with respect to a number of concerns it had with aspects to the Agreement. In particular, the concerns related to those that the Applicant had specified in its Form F17 - Employer’s declaration in support of application for approval of enterprise agreement as being terms that were less beneficial than the equivalent terms and conditions in the relevant modern awards. The terms that had been identified included the hours of work and overtime.

[3] Correspondence was received from the Applicant on 12 and 21 January and 2 February 2014.

[4] On 12 January 2014, the Applicant submitted a number of indicative rosters and calculations. Upon review of the documents, the calculations showed that a number of employees were not better off overall under the Agreement based on the rosters and calculations that had been provided.

[5] On 15 January 2014, my Associate phoned the Applicant to inform it that the calculations provided showed that a number of employees were not better off overall under the Agreement and that the Applicant should advise Chambers in writing of any undertakings it would be prepared to provide in order for the Agreement to meet the better off overall test.

[6] On 21 January 2014, the Applicant provided further rosters and calculations that demonstrated all employees were now better off overall. Upon inquiry the Applicant confirmed that it had amended its rosters to ensure that all employees were better off overall.

[7] On 28 January 2014, the Commission wrote the Applicant to request the views of each employee bargaining representative with respect to the amended rosters and calculations and confirmation of how the employee bargaining representatives were informed in relation to the amended rosters. The Commission also requested an undertaking that the amended rosters which had been provided to Commission would not be varied during the life of the Agreement.

[8] On 2 February 2014, the Applicant provided a number of undertakings with respect to the amended rosters and the better off overall test.

[9] The Applicant has provided an undertaking signed by each of the six employee bargaining representatives that they are satisfied with the amended rosters and calculations and the manner in which the amendments were communicated to them.

[10] A further undertaking has been provided that should there be any changes to the rosters, these will not be made without first ensuring that such changes would not fail the better off overall test. Further, that on the annual salary anniversary, in which the Applicant guarantees a 2.5% wage increase, they shall conduct a thorough review of every employee’s remuneration to ensure that each employee is better off overall under the Agreement.

[11] Upon review of the Applicant’s correspondence and undertakings, I am satisfied that employees are better off overall under the Agreement.

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

[13] 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.

[14] 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.

[15] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 12 February 2014. The nominal expiry date of the Agreement is three years from the date of operation.

COMMISSIONER

Annexure A

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