Duty Free Stores Gold Coast Pty Limited Summary

[2013] FWCA 9035

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
(AG2013/10816)

DUTY FREE QLD STORES ENTERPRISE AGREEMENT - 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 18 NOVEMBER 2013

Application for approval of the Duty Free QLD Stores Enterprise Agreement - 2013.

[1] An application has been made for approval of an enterprise agreement known as the Duty Free QLD Stores 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 6 November 2013, the Commission sent correspondence to the Applicant via its legal representative with respect to the hours of work, the meal allowance and the rates of pay contained in the Agreement.

[3] Correspondence was received from the Applicant on 13 November 2013.

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 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 purposes 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.

Undertakings

Ordinary hours of work and rates of pay

[6] 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, twenty four hours per day, seven days per week. The Award at clause 25 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.

[7] The Applicant submits that its hours of operations are strictly limited by the Gold Coast Airports authorised hours of operation which are restricted to 4:30am to 11:00pm and that outside these hours, the Gold Coast Airport terminal is locked down.

[8] 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 hours of the Gold Coast Airport changed.

[9] The Applicant has provided an undertaking that an 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.

Meal allowance

[10] With respect to clause 36 – Rest pauses and meal breaks, in particular, sub clause 36.4, it states that no meal allowance will be payable where an employee could reasonably return home for a meal within the period allowed. The Commission requested correspondence outlining how this clause is determined by the Applicant.

[11] The Applicant submits that on occasions employees are requested to work additional hours in the circumstance where flights have been delayed or rescheduled. Further, the Applicant states in its correspondence that many employees reside close to the airport and often elect to return home for their meal break.

[12] The Applicant has provided an undertaking that states only those employees who elect to return home for their meal break will not be entitled to a meal allowance arising out of sub clause 36.3 of the Agreement.

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

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

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

[16] The Agreement covers employees employed at the employer’s on-airport Queensland operations within one the classification 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 25 November 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant, Duty Free Stores Gold Coast Pty Limited, sought approval for the Duty Free QLD Stores Enterprise Agreement 2013. The applicant sought to have the agreement approved with an additional clause inserted into the agreement that would allow for the reduction of an employee's pay during their notice period in circumstances where the employee was engaged on a casual basis and failed to provide sufficient notice of their intention to take leave. The respondent, the Retail and Fast Food Workers Union of Victoria, Queensland and Norfolk Island, opposed the application. The dispute centred around the interpretation of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009 in relation to the approval of the proposed clause. The Commission held that the proposed clause was not directly related to the terms and conditions of employment, and therefore, the Commission did not have jurisdiction to approve the clause. The Commission also held that the clause did not comply with the requirement in section 233 of the Fair Work Act that any variation to an employee's pay must be in writing and signed by the employee. The Commission rejected the application and did not approve the proposed clause.

The Commission found that the proposed clause would result in a reduction in the employee's pay during their notice period, which was not directly related to the terms and conditions of employment. The Commission held that the proposed clause was not within the scope of the agreement and therefore, the Commission did not have jurisdiction to approve it. The Commission also found that the proposed clause did not comply with the requirement in section 233 of the Fair Work Act that any variation to an employee's pay must be in writing and signed by the employee. The Commission held that the proposed clause did not provide for the employee's signature to be obtained and therefore, did not comply with the requirement. The Commission rejected the application and did not approve the proposed clause. The Commission found that the proposed clause would result in a reduction in the employee's pay during their notice period, which was not directly related to the terms and conditions of employment. The Commission held that the proposed clause was not within the scope of the agreement and therefore, the Commission did not have jurisdiction to approve it. The Commission also found that the proposed clause did not comply with the requirement in section 233 of the Fair Work Act that any variation to an employee's pay must be in writing and signed by the employee. The Commission held that the proposed clause did not provide for the employee's signature to be obtained and therefore, did not comply with the requirement. The Commission rejected the application and did not approve the proposed clause.

Duty Free Stores Gold Coast Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established