Fantastic Furniture Pty Ltd

[2020] FWCA 699

[2020] FWCA 699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fantastic Furniture Pty Ltd
(AG2019/3437)

FANTASTIC FURNITURE ENTERPRISE AGREEMENT 2019

Retail industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 FEBRUARY 2020

Application for approval of the Fantastic Furniture Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Fantastic Furniture Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fantastic Furniture Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] An interim decision was issued in relation to the application on 4 February 2020 1 (the Interim Decision) which dealt with concerns held by the Commission and objections to approval of the Agreement by the Shop, Distributive and Allied Employees’ Association (the SDA).

[3] The Commission identified in the Interim Decision residual concerns it held in relation to;

(i) The laundry allowance payable to employees, which was calculated on the basis of $0.17 per hour, was detrimental relative to the Award in respect of casual and part-time employees that work shifts of less than 7.4 hours in length 2; and

(ii) The capacity of part-time Onsite Retail Employees to withdraw from an agreement to work their ordinary hours of work in such a way as to not receive 2 consecutive days off per week or 3 consecutive days off per fortnight 3.

[4] The Applicant was afforded an opportunity to address the remaining concerns which they did by the provision of revised undertakings on 5 February 2020, following which the SDA made submissions on those revised undertakings on 10 February 2020. While accepting that the proposed undertaking in relation to the laundry allowance addressed that particular concern, the SDA pressed their objection on the revised undertaking provided in relation to part-time Onsite Retail Employees being able to withdraw from an agreement that they not receive 2 consecutive days off per week.

[5] The relevant undertaking provided by the Applicant in respect to part-time employees’ days off per week was in the following terms;

“Notwithstanding anything in clause 2.1, 2.2 and 5.6(c) of the Agreement, Fantastic will not make an offer of employment for a part time Onsite Retail Employee conditional upon that employee agreeing to a pattern of work under clause 2.1(b) which does not include two consecutive days off each week. However, a part time Onsite Retail Employee may agree to not have two consecutive days off each week if they so choose. A part time Onsite Retail Employee may withdraw their agreement to not have two consecutive days off each week by the provision of four weeks’ notice provided that they agree with Fantastic on a variation to the matters prescribed in clause 2.1(b) of the Agreement in accordance with clause 2.3 of the Agreement to accommodate the Onsite Retail Employee having two consecutive days off each week.”

[6] The SDA submit that the proposed undertaking makes withdrawal from an agreement contingent on the Applicant agreeing with the employee to a variation on matters prescribed in clause 2.1(b) of the Agreement, and that the appropriate cross-reference for the undertaking would be to clause 5.3 of the Agreement. Further, the undertaking does not allow for 3 consecutive days off in a two-week period as provided by clause 28.11 of the General Retail Industry Award 2010 4(the Retail Award).

[7] Clause 28.11 of the Retail Award relevantly provides as follows;

“28.11 Consecutive days off

(a) Ordinary hours will be worked so as to provide an employee with two consecutive days off each week or three consecutive days off in a two week period.

(b) This requirement will not apply where the employee requests in writing and the employer agrees to other arrangements, which are to be recorded in the time and wages records. It cannot be made a condition of employment that an employee make such a request.

(c) An employee can terminate the agreement by giving four weeks’ notice to the employer.”

[8] Relevantly for the purpose of the concerns raised by the SDA, the Agreement provides as follows;

“2.1 Fantastic will inform each Employee in writing on or before commencement of their employment of:

(a) their employment status (i.e. whether they are a Full Time Employee, Part Time Employee or Casual Employee); and

(b) for a Part Time Employee;

i. the hours worked each day;
ii. which days of the week the Part Time Employee will work;
iii. the actual starting and finishing times each day; and
iv. the times of taking and the duration of meal breaks;

……………………

2.3 Fantastic and an Employee may agree to vary any of the matters in clause 2.1(a)–2.1(d) at any time in writing (including by electronic means).

A variation of any of the matters in clause 2.1(b) may be made at any time before the varied hours commence and may be of a temporary (including ad-hoc or temporary variations) or permanent nature.

……………………

5.3 Fantastic will make a weekly roster available at each Site and/or electronically at least two weeks before the commencement of the roster, showing for each Permanent Employee, the start and finish time of the Permanent Employee’s Ordinary Hours of Work for the Roster Cycle, provided that nothing in this clause prevents Fantastic from rostering overtime. The roster may be varied:

(a) by mutual consent between Fantastic and a Permanent Employee at any time:
(b) on 7 days’ notice from Fantastic;
(c) in the case of emergency, on 48 hours’ notice from Fantastic; or
(d) by a Shift Swap or Shift Cover arrangement under clause 6.”

[9] Dealing with the SDA contentions, I turn firstly to the absence of reference within the undertaking to an employee being entitled to 3 consecutive days off per fortnight, which is provided as an alternative in the Retail Award to that of 2 consecutive days off per week. I would observe that the Award provision does not confer a right to 3 days off per fortnight at the election of the part time employee. Rather, it requires the employer to roster part time employees’ hours of work such that they receive 2 consecutive days off per week or 3 consecutive days off per fortnight.

[10] An employer will be in compliance with the Retail Award if part time employees receive 2 consecutive days off each week, and if so, is not compelled under the Retail Award to roster part time employees so that they have 3 consecutive days off per fortnight. In these circumstances I do not regard the absence of reference within the proposed undertaking to the option of 3 consecutive days off per fortnight as a detriment in circumstances where the undertaking would ensure that part time Onsite Retail Employees received at least 2 consecutive days off each week under the Agreement, unless otherwise agreed.

[11] Now turning to the SDA submission that the proposed undertaking makes withdrawal from an agreement in respect of not receiving 2 consecutive days off per week conditional on agreement of the Applicant. It is important to recognise that on commencement of employment the Applicant is required under the terms of clause 2.1 to inform a part time employee of their hours of work, including the days of the week on which they will be required to work. The proposed undertaking ensures that, by the Applicant informing part-time Onsite Retail Employees on commencement of employment of their hours of work, such employees will be entitled to at least 2 consecutive days off each week. Any subsequently agreed variation to those ordinary hours of work, such that the part time Onsite Retail Employee agrees to not receive 2 consecutive days off each week, is able to be made under clause 2.3 which provides for the variation of any matters dealt with in clause 2.1(b), relevantly including that of a part time employees days off each week.

[12] The proposed undertaking allows an Onsite Retail Employee to withdraw from an agreement to not receive 2 consecutive days off per week with four weeks’ notice and subject to agreement with the Applicant to the variation of the Onsite Retail Employee’s ordinary hours of work in accordance with clause 2.3. It appears to me that the undertaking does no more than allow a part time Onsite Retail Employee to withdraw from an agreement on not receiving 2 consecutive days per week, but such withdrawal which would vary their ordinary hours of work, must be consistent with clause 2.3 of the Agreement. Such a requirement to agree on the variation of a part time employees’ ordinary hours of work is in fact necessary under the terms of the Agreement in my view.

[13] As regards the SDA submission that the appropriate cross-reference in the undertaking should be to that of clause 5.3, I disagree. Clause 5.3 is concerned with rostering. Rostering must have regard and will be subject to the agreed ordinary hours of work of part time employees in accordance with clauses 2.1 or as varied under clause 2.3. Absent agreed variations to part time employees’ ordinary hours of work, clause 5.3 cannot be used to vary part time employees’ ordinary hours of work. I am therefore satisfied that the undertaking properly cross references clauses 2.1 and 2.3.

[14] Having regard to the above I am satisfied that the proposed undertaking addresses the remaining concern I held in relation to the capacity of a part time Onsite Retail Employee to withdraw from an agreement to not receive 2 consecutive days off each week. As such, I do not regard the Agreement provisions, subject to acceptance of the relevant undertaking, as detrimental relative to the Retail Award.

[15] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[16] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[17] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[18] The Shop, Distributive and Allied Employees’ Association being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[19] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 February 2020. The nominal expiry date of the Agreement is 10 February 2024.

DEPUTY PRESIDENT

Annexure A

 1   [2020] FWC 559

 2   Ibid at [38]

 3   Ibid at [31]

 4   MA000004

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