Duty Free Stores Gold Coast Pty Limited

[2014] FWCA 5871

[2014] FWCA 5871

FAIR WORK COMMISSION

DECISION

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

Duty Free Stores Gold Coast Pty Limited
(AG2014/1879)

DUTY FREE STORES RETAIL AGREEMENT - 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 26 AUGUST 2014

Application for approval of the Duty Free Stores Retail Agreement - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Duty Free Stores Retail 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] On 13 August 2014, the Commission sent correspondence to the Applicant via its legal representative and the employee bargaining representative, in relation to concerns it had with the Agreement. In particular, the concerns related to the rates of pay, maximum daily hours and the ordinary hours of work.

[3] Correspondence was received from the Applicant on 20 August 2014.

Rates of pay

[4] In its correspondence to the Applicant, the Commission noted that the Agreement contains a loaded rate of pay that incorporates penalties that may otherwise be payable for early or late night trading together with work performed on Saturdays and the annual leave loading being absorbed into the wage rates. The Commission requested correspondence outlining how employees would be better off overall under the Agreement when compared to the entitlements they would receive under the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[5] The Applicant has provided a number of indicative rosters and calculations to demonstrate that employees under the Agreement would be better off overall despite the loaded rates of pay when compared to the entitlements they would receive under the Award.

Maximum daily hours of work

[6] With respect to clause 33 - Hours of Work, in particular, sub clause 33.4, the Commission notes that the Agreement provides that no employee will be rostered for more than 10 hours on any one day. The Award provides that an employee may be rostered to work up to maximum of nine ordinary hours on any one day, provided that for one day per week an employee can be rostered for 11 hours.

[7] The Applicant submits that prior to the engagement of overtime rates, employees remain substantially better off overall under the provisions of the Agreement given the substantially higher rates of pay for all ordinary hours of work.

Undertakings

Ordinary hours of work

[8] In its correspondence to the Applicant, the Commission noted that with respect to clause 33 - Hours of Work, in particular, sub clause 33.1 of the Agreement, it states that an employee may be rostered to work at any time, 24 hours per day, seven days per week. The Award provides for a span of ordinary hours of work. The Commission requested correspondence from the Applicant as to how employees would be better off overall despite the Agreement not containing a span of ordinary hours of work.

[9] The Applicant submits that its hours of operations are strictly limited by the authorised hours of operations of the Adelaide Airport, being the only facility from where operations are conducted which are restricted to 11:00pm and that outside these hours, the Airport terminal facilities is locked down.

[10] The Applicant states that the intention behind sub clause 33.1 of the Agreement is to allow for increased trading in the very unlikely event that the regulated operating hours are changed.

[11] The Applicant has provided an undertaking that a permanent employee who works between the hours of 11:00pm and 6:00am will be paid at overtime rates in accordance with clause 34 - Overtime of the Agreement.

[12] Upon review of the correspondence and undertaking provided by the Applicant, I am satisfied that employees covered by this Agreement are better off overall.

[13] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

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

[15] I have sought the views of the bargaining representative, in respect of the undertaking, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertaking provided.

[16] The Agreement covers employees of Duty Free Stores Gold Coast Pty Ltd who are employed at their on-airport retail operations within the classifications contained within the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[17] 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.

[18] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 2 September 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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