EI Administrative Services Pty Ltd

[2013] FWCA 7531

[2013] FWCA 7531

FAIR WORK COMMISSION

DECISION

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

EI Administrative Services Pty Ltd
(AG2013/1616)

EI RETAIL SERVICES ENTERPRISE AGREEMENT 2013

Miscellaneous
COMMISSIONER BULL	SYDNEY, 27 SEPTEMBER 2013

Application for approval of the EI Retail Services Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the EI Retail Services 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] At clause 1 - Definitions, it defines the title of the Agreement as the EI Retail Services Enterprise Agreement 2013. I note that the title page refers to the Agreement as the EI Retail & Restaurant Services Enterprise Agreement 2013, which was also the title referred to by the Applicant in its application to the Fair Work Commission (the Commission). The Applicant’s representative has confirmed that the correct name of the Agreement is the title provided for under the definitions clause of the Agreement.

[3] On 14 August 2013, a conference was held to discuss a number of concerns the Commission had with aspects of the Agreement. The issues concerned the rates of pay, ordinary hours of work, and the coverage of the Agreement.

[4] Following the conference correspondence was exchanged on a number of occasions between the Applicant’s representative and the Commission in order to satisfy the Commission’s concerns.

Undertakings

Coverage of agreement

[5] The Agreement sought to cover employees across a number of industries, including, the retail, storage, warehouse, wholesale, vehicle and fast food industries.

[6] I note that the Agreement was voted on by nine employees. The Applicant confirmed that those nine employees were employed as casuals and were all covered by the General Retail Industry Award 2010 (the Award) who fell within the retail employees classifications in the Agreement at Schedule A.

[7] The Commission advised the Applicant that it had concerns with respect to whether the industries covered by the Agreement could be considered a fairly chosen group pursuant to s.186(3) of the Act and requested the Applicant to provide submissions.

[8] The Applicant has provided an undertaking that the Agreement will operate to cover employees classified in clauses 1.1 to 1.3 of Schedule A of the Agreement, relating to retail classifications and that the Agreement will not cover fast food employees, restaurant and cafe employees, storage, warehouse and wholesale employees or vehicle industry employees.

[9] I am satisfied based on the undertaking provided that the group of employees that will now be covered by the Agreement is fairly chosen.

Ordinary hours of work

[10] At clause 8 - Hours of Work, in particular, sub clause 8.1 the Agreement provides that the ordinary hours of work for employees will not exceed 152 hours over 4 weeks and can be worked on any day Monday to Sunday inclusive of public holidays.

[11] The ordinary hours of work under the Agreement are greater than those defined in the Award. The Applicant has provided an undertaking to insert new clauses into the Agreement at 8.5 and 8.6 that the ordinary hours of work for retail employees will be the ordinary hours of work as provided for at clause 27.2 of the Award and that pursuant to sub clause 27.2(b)(iii) of the Award in the event that a stores trading hours extend beyond 9.00pm Monday to Friday or 6.00pm on Saturday or Sunday, the finishing time for ordinary hours of work on all days of the week will be 11.00pm.

[12] A further undertaking has been provided that employees may work a maximum of 10 ordinary hours per shift.

Overtime

[13] Following the undertaking with respect to the ordinary hours of work, an undertaking has been provided that all time worked outside ordinary hours as defined in clauses 8.1, 8.5 or 8.6 will be overtime.

Rates of pay

[14] The Commission identified that a number of the transitional hourly rates in the Agreement appeared to be below the Award minimum rates of pay.

[15] The Applicant provided correspondence stating that upon review of the Commission’s concerns they have realised that a number of the Agreement rates did not meet the better off overall test. The Applicant has provided an undertaking to rectify this error, by increasing the Agreement rates in Schedule B, C and E of the Agreement with respect to those employees in the retail classifications. A number of indicative rosters have been provided to the Commission to demonstrate that employees paid under these schedules of the Agreement are better off overall.

[16] I am satisfied the Agreement meets the better off overall test.

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

[18] 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 substantial change to the Agreement as per s.190(3)(b) of the Act.

[19] 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.

[20] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 4 October 2013. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

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