DJ Swag Pty Ltd T/A Video Ezy Beerwah and anor

[2010] FWA 4968

[2010] FWA 4968

FAIR WORK AUSTRALIA

STATEMENT

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

DJ Swag Pty Ltd T/A Video Ezy Beerwah and anor
(AG2009/21645),(AG2009/21696),(AG2009/22448),(AG2009/22450),(AG2009/22496), (AG2009/23748),(AG2009/23812),(AG2009/23816),(AG2009/23821),(AG2009/23828), (AG2009/23832),(AG2009/23841),(AG2009/23857),(AG2009/23871),(AG2009/24686), (AG2009/24687),(AG2009/24698),(AG2009/24700),(AG2009/24753),(AG2009/24756), (AG2009/24800),(AG2009/24801),(AG2009/24802)

(AG2010/4557),(AG2010/4807),(AG2010/5102),(AG2010/5107),(AG2010/5112), (AG2010/5189),(AG2010/5208),(AG2010/5211),(AG2010/5213),(AG2010/5229), (AG2010/5250),(AG2010/5254),(AG2010/5268),(AG2010,5303),(AG2010/5334), (AG2010/5354),(AG2010/5356),(AG2010/5410),(AG2010/5413),(AG2010/5415), (AG2010/5416),(AG2010/5417),(AG2010/5419),(AG2010/5420),(AG2010/5421), (AG2010/5422),(AG2010/5423),(AG2010/5428),(AG2010/5430),(AG2010/5432), (AG2010/5433),(AG2010/5434),(AG2010/5437),(AG2010/5438),(AG2010/5440), (AG2010/5442),(AG2010/5488),(AG2010/5614),(AG2010/5657),(AG2010/5666), (AG2010/5819),(AG2010/5821),(AG2010/5823),(AG2010/5830),(AG2010/5831), (AG2010/5833), (AG2010/5837)

COMMISSIONER ASBURY BRISBANE, 6 JULY 2010

Application for approval of various single enterprise agreements.

OVERVIEW

[1] At hearings on 31 March and 22 April I raised a number of concerns with respect to enterprise agreements lodged by the NRA. The matters about which I was concerned were related to statutory declarations completed by employer parties to the enterprise agreements outlining pre-approval steps which were said to comply with the requirements of the Fair Work Act 2009 (the Act), and to whether the enterprise agreements passed the no disadvantage test. The NRA did not respond to these matters, and the enterprise agreements were listed for further hearing on 4 June 2010. On 3 June 2010 the NRA wrote to me raising an allegation of apprehended bias on my part, and seeking that I disqualify myself from further dealing with any matters involving the NRA. That matter was heard on 4 June 2010.

On 9 June 2010, the NRA again pressed the apprehended bias application, in relation to an unfair dismissal claim in which NRA is representing the respondent. In pressing this matter the NRA sought to revisit its earlier application alleging bias in relation to the approval of enterprise agreements involving the NRA. The second application alleging apprehended bias was heard on 15 June 2010.

[2] On 15 June 2010, I released a decision in relation to the first application alleging apprehended bias, in which I refused to disqualify myself from dealing with matters involving the NRA. That decision also outlined the concerns I continued to have in relation to pre-approval steps associated with the enterprise agreements lodged by the NRA, and whether those agreements passed the no disadvantage test. On 22 June 2010, I released a decision in relation to the second application alleging apprehended bias, in which I again refused to disqualify myself from dealing with matters involving the NRA and reiterated my request for a response from the NRA in relation to concerns I continued to hold in relation to enterprise agreements lodged by the NRA.

[3] On 22 June 2010, I received correspondence from Mr Black on behalf of the NRA, responding to my concerns in relation to the enterprise agreements. Unfortunately Mr Black appears to have responded to the issues I raised on 31 March and 22 April, without considering the decision I released on 15 June. That decision clearly indicated that effluxion of time and further consideration I had undertaken in the absence of a response from the NRA, had resulted in some of the matters I had raised at earlier hearings no longer being of concern. Mr Black has responded to some of the issues which I had indicated were no longer of concern.

[4] Further, Mr Black’s letter does not address other issues I have raised on numerous occasions, and upon which I have requested responses. Mr Black’s letter refers to a number of agreements which are said to be an indication that some of the concerns I have raised have no basis. For example, I had expressed concern that some of the agreements lodged by the NRA do not provide maximum or minimum hours for part-time employees in accordance with the terms of relevant reference instruments. Mr Black’s letter refers to some agreements which do contain such provisions, and misses the point that there are others which do not.

[5] I have considered the response provided by the NRA to the concerns I raised on 31 March, 22 April and 15 June. Some of the matters about which I have concerns are common to all agreements lodged by the NRA. Other matters relate to only some agreements. It should be apparent given the number of occasions upon which I have expressed my concerns, which agreements those concerns relate to. For the avoidance of doubt, the matters about which I continue to have concerns, and which I require the NRA to address are set out below.

MATTERS RELATING TO ALL AGREEMENTS

Operative Date

[6] By virtue of s.54 of the Fair Work Act 2009 (the Act) an enterprise agreement approved by FWA operates from 7 days after the agreement is approved or a later date if specified. Section 186(5) of the Act requires FWA to be satisfied that the agreement specifies a nominal expiry date that is not more than four years from the day it commences.

Each agreement provides that it will commence on the seventh day after being declared by FWA as having passed the no disadvantage test, and that its nominal expiry date will be 4 years from the day it commences.

[7] The effect of the clauses in each agreement dealing with commencement and nominal expiry date, is that the agreements if approved in their current form, will specify a nominal expiry date that is more than four years after the date on which the agreement is approved. The NRA has indicated that the affected employers are willing to provide an undertaking to address this issue. I am prepared to accept an undertaking to the effect that the nominal expiry date of each agreement will be four years from the date upon which the agreement was approved.

Preferred Hours

[8] Under the heading “Your wage” each agreement provides that employees may elect to work at times when additional amounts would otherwise be payable under the agreement, and to be paid at the basic hourly rate of pay for working such hours. Consistent with the decision of a Full Bench of FWA in Bupa Care Services Pty Ltd and P& A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie Murwillumbah and Others 1(the Bupa Case) such a provision will result in an agreement not passing the no disadvantage test where the terms of a relevant reference instrument provide for payment for “preferred hours” at overtime or penalty rates, and/or the agreement does not provide more beneficial terms and conditions, so that it can be established that on balance, an employee is not disadvantaged by the operation of the agreement.

[9] That decision also stands as authority for the proposition that the no-disadvantage test requires a comparison of the terms and conditions of employment in an enterprise agreement against the terms and conditions of employment in any relevant reference instrument, and that the effect those terms and conditions may have on the actions of the employee or the employer, is not relevant. 2

[10] The NRA was of the appellants in the Bupa Case, and the agreements considered in that decision are in virtually identical terms to those in the present case. The NRA conceded at first instance that the preferred hours clause caused the agreements to fail the no-disadvantage test, and on appeal in the Bupa Case proffered undertakings to address this issue. Those undertakings were accepted in further proceedings before Deputy President Sams and the agreements in respect of which they were given, were approved.

[11] The NRA has indicated in submissions relating to the present applications, that the applicant employers are prepared to provide undertakings to remove the option of employees working “preferred hours”. An undertaking in the following terms (or similar) would address my concerns in respect of this matter:

“[insert name of employer] will not refer to, rely on or implement clauses 6, 7, 8, 9, or 10 or Schedule 12 in relation to paying employees the basic rate of pay under the agreement for preferred hours.”

Annual Leave

[12] Each of the enterprise agreements contains a provision giving the employer the right to direct an employee to take annual leave. There is no notice period stipulated in the event that the employee does not agree to take leave at the time directed by the employer.

[13] Each of the reference instruments nominated in statutory declarations completed by employers in support of the approval of the agreements, either implicitly or explicitly, provides that annual leave is to be taken at a time mutually agreed between the employer and the employee. Where there is no agreement:

• The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (WA) provides that an employer who requires an employee to take annual leave must give two weeks notice to the employee;

• The Retail Industry Award - State (Qld); the Retail Take-Away Food Award South Eastern Division (Qld) and the Fast Food Industry Award - South Eastern Division (Qld); read in conjunction with the Industrial Relations Act 1999 (Qld) provide that in the absence of agreement, an employer may decide when an employee is to take annual leave, and must give the employee fourteen days notice of the starting date of the leave;

• The Shop Employees (State) Award (NSW) read in conjunction with the s. 3 of the Annual Holidays Act 1944 (NSW) provides that the employer must give an employee four weeks notice of the date upon which annual leave is to commence;

• The Retail, Wholesale and Distributive Employees (NT) Award 2000 provides that where there is no agreement as to the time of taking annual leave, four weeks notice will be provided by the employer to the employee; and

• The Retail and Wholesale Industry - Shop Employees - Australian Capital Territory - Award 2000 provides that where there is no agreement as to the time of taking annual leave, six weeks notice will be provided by the employer to the employee.

[14] The NRA response to this issue is that leave entitlements under Notional Agreements Preserving State Awards (NAPSA) should not be taken into consideration for the purposes of considering leave entitlements under the agreements, because they have no operation. This is said to result from provisions of legislation dealing with the transition to the Fair Work Act2009 and the rules associated with transitional instruments, including a relevant NAPSA. According to the NRA’s submission, while annual leave was a preserved term under a NAPSA, these entitlements only had effect if they were more generous than the annual leave entitlements under the Australian Fair Pay and Conditions Standard. Further the NRA submits that the repealed Workplace Relations Regulations (Cth) 2006 defined the meaning of “more generous” so that the test was limited to a comparison of the quantum of leave under the preserved term in the NAPSA compared to the quantum of leave under the Standard. If the preserved term under the NAPSA was equal to or less than the Standard, then the Standard had effect. The leave entitlements in the NAPSA were equal to or less than the entitlements under the Standard, and therefore the leave entitlements under the NAPSA had no effect.

[15] I do not accept this submission. The application of the no disadvantage test to agreements made during the bridging period is dealt with in SCHEDULE 7, PART 2, Division 2, of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The test as expressed in Division 2 item 4 is as follows:

“4(1) An enterprise agreement passes the no-disadvantage test if FWA is satisfied that the agreement does not, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees who are covered by the agreement under any reference instrument relating to one or more of the employees.”

[16] A “reference instrument” is defined in Division 2 item 5 as any relevant general instrument or if there is no relevant general instrument, any designated award, for one or more of the employees. A “relevant general instrument” for an employee who is covered by an enterprise agreement, is defined in item 5(2) of Schedule 7 of the Transitional Act, in the following terms:

“5(2) A relevant general instrument, for an employee who is covered by an enterprise agreement, is an award-based transitional instrument:

(a) that regulates, or would but for an enterprise agreement or another industrial instrument having come into operation regulate, any term or condition of employment of persons engaged in the same kind of work as that performed or to be performed by the employee under the enterprise agreement; and

(b) that applied, or would but for an enterprise agreement or another industrial instrument having come into operation have applied, to the employee’s employer immediately before the day on which the application for approval of the agreement was made under section 185 of the FW Act.”

[17] The no-disadvantage test as it is set out in Schedule 7 of the Transitional Act, is expressed in broad terms. It is essentially an artificial construct, whereby an agreement is measured against a reference instrument at the test time. By virtue of item 6 of Schedule 7, the “test time” is the time when the application for approval of the agreement was made.

In my view, the way that the no-disadvantage test is expressed makes it clear that where a reference instrument regulates (or would but for an enterprise agreement or other industrial instrument) any term and condition of employment of an employee, the instrument in its entirety is used for the purposes of considering whether the agreement passes the no-disadvantage test.

[18] The reference instrument is required to be nominated by the applicant for approval of an agreement, or designated by FWA in the absence of such a nomination. I can see no basis for accepting that the terms of a reference instrument can be reduced or undercut for the purposes of applying the no-disadvantage test, by another instrument which is not referred to in the formulation of the test. I accept that the Australian Fair Pay and Conditions Standard may have dealt with a matter such as the quantum of a form of leave, and that the Standard in relation to this matter, at some point in time, operated instead of the provisions of the reference instrument dealing with the same matter, where it was more generous. I do not accept that this means that all other provisions in the reference instrument dealing with the same matter, such as those setting out how leave will be taken and under what conditions, cease to have application for the purpose of applying the no-disadvantage test.

[19] Accordingly, employers may address this issue by providing an undertaking to the effect annual leave will be taken at a time agreed between the employer and the employee, and in the absence of such agreement the employee will be given the period of notice specified in the relevant reference instrument, of the date upon which annual leave will commence. Any such undertaking should also specify the relevant period of notice in the undertaking.

Personal Leave

[20] In relation to Personal Leave, each agreement provides that where an employee takes any period of leave for the personal illness or injury, or to care for a member of the employee’s family who requires care and support, the employee must provide either a medical certificate or a statutory declaration (if it is not reasonably practicable to supply a medical certificate) to support the absence and the reasons for it. With respect to the sick leave or personal illness or injury component of such leave, this requirement is more onerous than the terms of the following relevant reference instruments:

• The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (WA) does not require a medical certificate or other proof to be provided to support a claim for sick leave, for absences of two days or less, unless the employee has had two such absences in any year;

• The Retail Industry Award - State (Qld); the Retail Take-Away Food Award South Eastern Division (Qld) and the Fast Food Industry Award - South Eastern Division (Qld) do not require a medical certificate or other documentary proof unless the absence is for two or more days and in relation to family leave (carers leave)

• The Retail, Wholesale and Distributive Employees (NT) Award 2000 provides that an employee is entitled to two single day absences if they produce a signed statutory declaration stating that they were unable to attend for work on account of personal injury or accident, and thereafter are required to produce a medical certificate.

[21] For the reasons set out above, I do not accept that the Australian Fair Pay and Conditions Standard, to the extent that it simply provides for a quantum of Personal/Carers Leave, can derogate from or reduce the benefits of other provisions of the reference instrument dealing with the entitlement of employees to claim such leave.

[22] Accordingly, employers may address this issue by providing an undertaking to the effect the entitlement of employees to Personal Leave is dependent on providing satisfactory evidence as required under the terms of the relevant reference instrument, and specifying such terms in the undertaking.

Terms incorporated by reference

[23] The majority of the agreements contain the following provisions in relation to Parental Leave and Long Service Leave:

“Your entitlement to Parental Leave

Your parental leave entitlements will be as per the Act.

Your entitlement to Long Service Leave

You are entitled to long service leave in accordance with the relevant State legislation.”

[24] Some of the Agreements refer to the Australian Fair Pay and Conditions Standard as the basis for Parental Leave entitlements. Other agreements refer to the “the Act” which is defined as the Fair Work Act 2009. In relation to the Long Service Leave the agreements refer simply to the “relevant legislation” with respect to these entitlements.

[25] In its submissions in relation to my concerns about these provisions, the NRA states:

“...we surmise from your honour’s comments that your honour considers that the State Long Service Leave legislation as well as copies of the Act insofar as parental leave entitlements are concerned should have been provided to employees because we have incorporated those provisions into the terms of the agreement.”

The NRA surmises correctly. Section 180(2) of the Act requires that:

“Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.”

[26] By virtue of s.186(2)(a) and s.188(a)(i) this is a requirement for FWA being satisfied that employees have genuinely agreed to the terms of an enterprise agreement.

[27] The NRA submits that the effect of the clauses dealing with Parental Leave and Long Service Leave, is that the agreements do not incorporate the terms of the legislation, but merely advise employees where their current legislative entitlement are derived. It is further submitted by the NRA that the agreements do not seek to embed the legislation as it stood at a particular point. The agreements do not alter those legislative entitlements and could have just as easily not referred to them, and the effect on employees would have been exactly the same.

[28] It is the case, as submitted by the NRA, that the agreements do not alter the legislative entitlements of employees, and that even if the agreements did not refer to those legislative entitlements, they would still apply. However, it is arguable that the agreements incorporate various statutory provisions by reference. The statutory declarations filed in support of each agreement do not indicate that copies of legislative provisions referred to in the agreements were provided to employees in the access period, as required by s. 180(2)(ii). It is also the case that some of the agreements refer to the previous Fair Pay and Conditions Standard.

[29] In circumstances where a reference in an agreement to a statutory provision simply advises employees about the source of an entitlement, and does not seek to alter the source of the entitlement, I am prepared to accept an undertaking from each employer to address my concerns about this issue. In doing so, I am also of the view that it is relevant that that the reference instruments against which the no-disadvantage test is applied, either set out entitlements in full, or specify the title of any legislative or statutory instrument from which an entitlement under the reference instrument is derived. In no case is there a generic reference such as “the relevant State legislation”.

[30] Further, the reference instruments contain a provision which requires that they be posted or available in each workplace. This means that employees under the reference instruments have access to those instruments, including details of the source of entitlements such as long service leave and parental leave. Thus employees who wish to examine the terms of those entitlements know their source and have sufficient information to obtain copies of relevant legislation. In my view this is a benefit which should be weighed against the terms of an agreement. Where agreements refer to Parental Leave or Long Service leave it is not sufficient to simply state in generic terms that such entitlements are in accordance with the relevant legislation, without stating at very least, the title of the legislation. It is also the case that a significant number of the NRA agreements refer to the Australian Fair Pay and Conditions Standard as the source of parental leave entitlements, when the standard is no longer applicable. In fact the Australian Fair Pay and Conditions standard ceased to have effect shortly after the agreements were lodged for approval.

[31] Accordingly, undertakings from employers in the following (or similar terms) will address my concerns in relation to these matters:

“The entitlements of employees covered by the agreement to long service leave will be in accordance with [insert title of legislation and section number];

The entitlements of employees covered by this agreement to Parental Leave will be in accordance with Chapter 2, Part 2-2, Division 5 of the Fair Work Act 2009.”

Exclusion of employees from redundancy entitlements on transmission of business

[32] In each agreement under the heading: “What if your employment is made redundant?” the following provisions appear:

“You will not be entitled to severance payments if:

...

The business or part of the business is transmitted from us (“current employer”) to another entity (“new employer”) and

(i) you receive an offer of employment from the new employer;

(ii) that offer contains terms and conditions that are substantially similar and no less favourable, considered on an overall basis, than the terms and conditions applicable to you at the time of ceasing employment with us; and

(iii) the offer provides that the new employer will recognise the period of continuous service that you had with us to be continuous service with the new employer.”

[33] The Act at s.122 deals with transfer of employment situations that affect the obligation to pay redundancy pay. The provisions of the enterprise agreements set out above, are essentially the same as those in s.122. The exception is that the enterprise agreements do not contain a provision equivalent to s.122(4) of the Act, which provides that Fair Work Australia may order an employer to pay an employee a specified amount of redundancy pay, where satisfied that s.122 operates unfairly to an employee. These provisions are part of the National Employment Standards.

[34] In the statutory declarations filed in support of the enterprise agreements, each employer has stated that the agreements deal with matters contained in the National Employment Standards, and that there are no terms of the agreements that exclude in whole or in part, the National Employment Standards. Having deposed to these matters in a statutory declaration, there should be no difficulty for each employer in addressing this issue by providing an undertaking to the effect that the clause in the agreement dealing with redundancy, does not exclude in whole or in part, the provisions of s. 122(4) of the Act. I note that the NRA has indicated in its submissions that affected employers are prepared to give undertakings in relation to these matters. I am prepared to accept such undertakings to address the concerns I have raised.

Right for employees to be represented in discussions about workplace change

[35] Each of the agreements contains a clause headed: “What if there are changes in the workplace?”, and requires discussions with employees about such changes. The provision does not give employees the right to be represented in those discussions. This is in contrast with the terms of reference instruments which do provide such a right, and with the terms of the Model Consultation Term which is a default provision in the event that an agreement does not contain a term about consultation.

[36] It is also contrary to s.205(1)(b) which provides that an enterprise agreement must include a model consultation term, which allows for the representation of employees. This is a mandatory term for an enterprise agreement.

[37] The NRA submits that this omission does not have any real practical significance, because known union membership in the relevant workforces is low, and in any event employees who wanted to be represented would not be denied this right. The NRA has also indicated that affected employers are prepared to give an undertaking in relation to this matter.

[38] It is mandatory that agreements contain a consultation term which allows for representation of employees. This issue may be addressed by each employer giving an undertaking to the effect that employees have the right to appoint a representative for the purpose of consultation under the provision.

Casual Conversion Clause - New South Wales Agreements

[39] The Shop Employees (State) Award (NSW) contains a provision giving a right to casual employees who meet certain criteria, to elect to become full time or part time employees. This provision is not found in the agreements lodged by the NRA which indicate that the Shop Employees (State) Award (NSW) is the reference instrument for the purpose of applying the no-disadvantage test.

[40] The NRA has indicated in its submissions that the affected employers are willing to provide undertakings to alleviate any concerns about the omission of this clause. I am prepared to accept such undertakings.

BOOST JUICE AGREEMENTS

Boost Juice Glendale (AG2010/5268) NSW

• Reference instrument not clearly specified

• No maximum hours for part time employees

Boost Juice Castle Hill (AG2010/5112) NSW

• No reference instrument specified

• No maximum hours for part time employees

Boost Juice Blacktown (AG2010/5334) NSW

• No reference instrument specified

• No maximum hours for part time employees

Boost Juice Rouse Hill (AG2009/23821) NSW

• No maximum hours for part time employees

Agreement for Boost Juice East Gardens (AG2009/24800) operates in NSW and specifies 30 hours per week maximum for part time employees.

Boost Juice Carindale and Toombul (AG2010/5614) QLD

The employer declaration states at 2.2 that the agreement was made on 31 December 2009, and the application for approval was lodged on 3 February 2010. At 2.3 of the employer declaration, there is a request for an extension of time in which to file the application for approval of the agreement.

Section 185(3)(a) of the Fair Work Act 2000 provides that an application for approval “must” be made within 14 days after the agreement is made. Section 185(3)(b) confers a discretion on FWA to extend time. However, by virtue of item 15, Schedule 7 of the Transitional Act, the power to extend time does not apply in relation to agreements made during the bridging period - 18 to 31 December 2009. The agreement was made during the bridging period, and was lodged on 3 February 2009, outside the 14 day time period. Accordingly, the application for approval of this agreement must be refused.

Surfers Paradise, Hard Rock, Helensvale (AG2010/5488)

The employer declaration states at 2.2 that the agreement was made on 31 December 2009, and the application for approval was lodged on 22 January 2010. At 2.3 of the employer declaration, there is a request for an extension of time in which to file the application for approval of the agreement.

Section 185(3)(a) of the Fair Work Act 2000 provides that an application for approval “must” be made within 14 days after the agreement is made. Section 185(3)(b) confers a discretion on FWA to extend time. However, by virtue of item 15, Schedule 7 of the Transitional Act, the power to extend time does not apply in relation to agreements made during the bridging period - 18 to 31 December 2009. The agreement was made during the bridging period, and was lodged on 22 January 2009, outside the 14 day time period. Accordingly, the application for approval of this agreement must be refused.

DONUT KING AGREEMENTS

Sturt Mall (AG2010/5415) QLD

Reference instrument: Retail Take Away Food Award - South Eastern Queensland

• No minimum weekly hours for part time employees (should be 12 per week)

Kellyville and Stanhope (AG2010/5422) NSW

Reference instrument: Shop Employees (State) Award - Special Shops

• No minimum hours for part - time employees (should be 9 per week)

Dubbo (AG2010/5430) NSW

Reference instrument: Shop Employees (State) Award - Special Shops

• No minimum hours for part - time employees (should be 9 per week)

Glendale (AG2010/5657) NSW

• Missing section of statutory declaration re NAPSA

• No minimum hours for part-time employees (assuming should be 9 per week in accordance with NSW Shop Employees Award - State

EAGLE BOYS

It is not clear whether these agreements cover delivery drivers, to enable consideration of whether the nominated reference instruments are correct.

Newtown (AG2010/5413) NSW

• has not answered questions 2.8, 2.9 or 2.10 number of employees covered, number who cast valid vote, number who voted in support of agreement

• has not answered 3.1 NAPSA or reference instrument

Bowen (AG2009/22448) QLD

Reference instrument: Fast Food Industry Award - State (Excluding South East Queensland)

• No minimum weekly hours for part time employees - should be minimum of ten to be worked on no less than two and no more than five days in a week.

Murwillambah (AG2009/23871) NSW

• Last representational rights notice not given to employees 14 days before agreement made - see question 2.7

• No NAPSA or reference instrument specified

• No weekly minimum or maximum hours for part time employees - should be minimum of 9 and maximum of 30 per week??? Depending on NAPSA

Armidale (AG2010/5437) NSW

Reference instrument: Shop Employees (State) Award - Special Shops

• No minimum hours for part time employees - should be 9 per week.

Alstonville (AG2010/5438) NSW

• No NAPSA or reference instrument specified

• No maximum or minimum hours for part time employees specified should be maximum of 30 and minimum of 9 per week if the reference instrument is the Shop Employees (State) Award.

Cessnock (AG2010/5423) NSW

• No NAPSA or reference instrument specified

• No maximum or minimum hours for part time employees specified should be maximum of 30 and minimum of nine per week if the reference instrument is the Shop Employees (State) Award.

Kempsey (AG2010/5420) NSW

Indicates that the agreement also operates in Queensland.

• No NAPSA or reference instrument(s) specified

• No maximum or minimum hours for part time employees specified should be maximum of 30 and minimum of nine per week if the reference instrument is the Shop Employees (State) Award.

Mt Druitt (AG2010/5419 NSW

• No NAPSA or reference instrument specified

• No maximum or minimum hours for part time employees specified should be maximum of 30 and minimum of nine per week if the reference instrument is the Shop Employees (State) Award.

Muswellbrook (AG2010/5211) NSW

• No NAPSA or reference instrument specified

• No minimum hours for part time employees specified should be minimum of nine per week if the reference instrument is the Shop Employees (State) Award.

Eastwood (AG2010/5433) NSW

Reference instrument: Shop Employees (State) Award

• No minimum hours for part time employees specified should be minimum of nine per week

Casino (AG2010/5102) NSW

• No NAPSA or reference instrument specified

• No maximum or minimum hours for part time employees specified should be maximum of 30 and minimum of nine per week if the reference instrument is the Shop Employees (State) Award.

NEXTRA

Victoria Point (AG2009/23857) QLD

Reference Instrument: Retail Industry Award - State

• Minimum weekly hours for part time employees - should be 12 per week

Cannon Hill (AG2010/5107) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Wynnum (AG2009/24801) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Marpal Investments (AG2010/5303) WA

Reference instrument: Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977

• No minimum hours for part time employees - should be 12 per fortnight.

Cooleman Court (AG2010/5666) ACT

Reference instrument: Retail and Wholesale Industry - Shop Employees - ACT Award - 2000

• Agreement says part - time hours are a maximum of 38 per week, should be less than 38 per week;

• Part time employees need to have a regular pattern of work specifying matters in 13.3.3 of Award, otherwise employee is casual and paid accordingly.


• No provision for casual employees with caring responsibilities - see Award 13.4.4.

Forest Lake (AG2010/5830) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

VIDEO EZY

Pure Ezy (AG2010/5823) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Coolum and Ashgrove (AG2010/5821) (QLD)

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Kawana, Currimundi, Emerald and Kingaroy (AG2010/5819) (QLD)

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Windsor (AG2010/5213) NSW

Reference instrument: Shop Employees (State) Award - Special Shops

• No minimum hours for part-time employees - should be 9.

Beerwah (AG2009/21645) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

CIVIC VIDEO

Morningside and Calamvale (AG2010/5831) QLD

Reference instrument:

Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Seventeen Mile Rocks (AG2010/5833) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

NEWSXPRESS NEWSAGENTS

Ray Ray (AG2009/23832) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Grabal (AG2010/5189) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Norfolk (AG2010/5410) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Australia Fair (AG2010/5417) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

BLOCKBUSTER

BBF Metro (AG2010/5440) QLD

Reference instrument:Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Penfold Investments (AG2009/24802) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

CARDEAUX

Northern Territory (AG2009/24687) NT

Reference instrument: Retail, Wholesale and Distributive Employees Award

• No maximum hours for part time employees - should be less than 38 per week;

South Australia (AG2009/24698) SA

• Nominates a WA Award as the reference instrument but operates in South Australia according to title of agreement.

Australian Capital Territory (AG2010/5416) ACT

Reference instrument: Retail and Wholesale Industry - Shop Employees - ACT - Award 2000.

• There is a question about start time hand written on the agreement at clause 21.

• Agreement provides for part time employees to work 38 hours a week - should be less than 38 hours.

• Part time employees need to have a regular pattern of work specifying matters in 13.3.3 of Award, otherwise employee is casual and paid accordingly.

New South Wales (AG2009/26846)

Reference instrument: Shop Employees Award (State) NSW

• No minimum hours for part-time employees - should be 9.

Western Australia (AG2009/24700)

Reference instrument: Shop and Warehouse (Wholesale and Retail Establishments) State Award.

• No minimum hours for part time employees - should be 12 per week.

OTHER AGREEMENTS

Debenheir (AG2010/5421) NT

Reference instrument: Retail, Wholesale and Distributive Employees Award

• No maximum hours for part time employees - should be less than 38 per week;

Network Video Kenmore (AG2010/5254) QLD

• No reference instrument provided.

• No minimum hours for part-time employees - should be 12 per week if the reference instrument is Retail Industry Award - State.

• Part time employees can work a maximum of 38 hours per week - should be 32 hours per week or 64 per fortnight if the reference instrument is Retail Industry Award - State.

Damstreet Pty Ltd (AG20105250) QLD

Reference instrument: Fast Food Industry - Excluding South East Queensland

• No minimum or maximum hours for part time employees - should be not less than 10 ordinary hours per week to be worked on not less than 2 and not more than 5 days of the week.

Deejay Management (AG2010/5434) NSW

Reference instrument: Shop Employees (State) Award - Special Shops

• No minimum hours for part-time employees should be 9 per week.

Martrib (AG2009/24756) NSW

Reference instrument: Shop Employees (State) Award

• No minimum hours for part-time employees - should be 9 per week.

Bruno Cirillo Investments (AG2009/21696) NSW

Reference instrument: Shop Employees (State) Award

• No spread during which ordinary hours are to be worked - should be 6.00 am to 12.00 midnight.

Lipjad (AG2009/22496) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Peter Baker Finch (AG2009/24753) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Tully Cane Growers Co-operative (AG2009/23748) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

• Casual employees who work after school less than 3 hour minimum only on school days.

Calleija Jewellers (AG2009/23841) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

Go Vita Mt Ommaney and West End (AG2010/5229) QLD

Reference instrument: Retail Industry Award - State

• No minimum hours for part-time employees - should be 12 per week.

OTHER ISSUES

Allowances for employees using their own vehicles

[41] A number of agreements contain references to allowances for employees required to use their own transport being removed. NRA has indicated in response to this issue that employees will not be required to use their own transport, and in the alternative has offered an undertaking to reinstate the allowances. I would accept an undertaking that either reinstated the allowances in relevant circumstances, or which made it clear that employees would not be required to use their own vehicles in the course of their employment.

Uniform/Laundry Allowances

[42] The agreements do not contain laundry allowances or provision for reimbursement of expenses for laundering in circumstances where employees are required to wear a uniform. These allowances are contained in a number of the relevant reference instruments. I would accept an undertaking that reinstated these allowances in relevant circumstances.

Wage Rates

[43] Initially I raised a concern in relation to the fact that the agreements specified wage rates which were equal to or only slightly in excess of those in the relevant reference instruments and did not contain any reference to wage increases during the life of the agreements. In its submissions, the NRA referred to s. 206(1) and (2) of the Fair Work Act 2009, and contended that the effect of those provisions and the provisions of the Transitional Act was such that minimum wage rates could not fall below the rates prescribed by the relevant pay scale or the minimum rates under the Modern Award. NRA also indicated that the affected employers would be prepared to provide an undertaking in relation to this matter.

[44] I do not require such an undertaking. On further consideration, while awaiting a response from the NRA, it is apparent that this issue is addressed in the “Definitions” section of each agreement, where the following appears:

“Basic hourly rate of pay’ means the hourly rate of pay applicable to your classification as outlined in section 12 of this agreement. At no stage will this hourly rate fall below the minimum rate of pay applicable to your classification under the Fair Work Act 2009 (Cth) as amended from time to time. If you are a casual employee the basic hourly rate of pay is inclusive of casual loading.”

CONCLUSIONS

[45] It is a matter of great regret that the approval of some 70 agreements lodged with FWA by the NRA in December 2009 and January 2010 has dragged out until the present date. There has been no refusal from FWA with respect to approval of the agreements. I have asked a number of questions which go to the statutory requirements for approval of the agreements. It should be no surprise to any organisation that appears regularly before FWA, as the NRA does, that members ask questions about applications. This is particularly the case where there are mandatory requirements in respect of which the Tribunal must be satisfied before a decision can be made, and where the only basis that the Tribunal has to be satisfied about those requirements is the documentation provided by or on behalf of the applicant.

[46] The drafting of the agreements, and the supporting documentation in the present applications has left much to be desired. As Deputy President Sams observed in a decision P & A Securities Pty Ltd as trustee for the D'Agostino Family Trust Enterprise Agreement and other agreements 3 of 6 May 2010, in relation to a number of other applications lodged by the NRA:

“This case, like so many others involving s 185 applications before Fair Work Australia (FWA), demonstrates a less than diligent attention to the particular requirements of the Act and Regulations under Par 2-4. It is for good reason that the Employer Declaration is to be in the form of a statutory declaration. I continue to be surprised and perplexed that, in so many applications, the Form 17 is filled out as if it meant little more than notes on the back of a beer coaster or on the basis, it seems, that “close enough is good enough”. There has also been some misapprehension that it is for the Tribunal to determine the accuracy of the Form 17. Lest there be any doubt, Form 17 is the employer’s verification document, not the Tribunal’s guide to correcting the employer’s laxity or error. Moreover, given that these Agreements are to regulate the terms and conditions and set the industrial frame work for employees and their employer for up to four years, one would expect, recognising the importance and longevity of these arrangements, that a little more time and care might be put into the initiating documentation.”

I respectfully concur with those comments.

[47] The delay in dealing with these matters is solely attributable to the NRA refusing to engage with the Tribunal as presently constituted, to ensure that agreements could be processed in a timely manner. The upshot is that on 22 June 2010, the NRA responded to the matters I have been raising since 31 March 2010, and has offered undertakings in relation to most of them, which will address the issues I have raised. Had the NRA engaged in this exchange in a timely manner, the agreements would have been approved at a much earlier date. Upon receipt of the undertakings detailed in this decision, I will approve each of the agreements.

COMMISSIONER

Appearances:

J Moore on behalf of Employers.

Hearing details:

2010.

Brisbane:

July 6.

 1   [2010] FWAFB 2762

 2 ibid at [25].

 3   [2010] FWAA 3639 PN [8]

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