Finesun Holdings Pty Ltd T/A Kinross Supa IGA

[2014] FWCA 3365

FAIR WORK COMMISSION

DECISION

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

Finesun Holdings Pty Ltd T/A Kinross Supa IGA
(AG2014/5660)

THE KINROSS SUPA IGA AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 21 MAY 2014

Application for approval of The Kinross Supa IGA Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as The Kinross Supa IGA 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.

Undertakings

Rates of pay

[2] Upon review of the Agreement, the Commission wrote to the Applicant via its representative with respect to clause 20 - Wages, and in particular, sub clause 20(5) of the Agreement. The Commission notes that the Junior rates for employees under 16 years of age under the Agreement is 40% of the appropriate adult rate. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test, provides that employees under 16 years of age will receive 45% of the adult rate of pay.

[3] Calculations undertaken by the Commission demonstrated that employees under 16 years of age would not be better off under the Agreement given the lower percentage.

[4] The Applicant has provided an undertaking to increase the percentage under the Agreement with respect to employees under 16 years of age from 40% to 45%.

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

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

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

[8] 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.

[9] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 28 May 2014. 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

CaseChat Overview and Summary

Finesun Holdings Pty Ltd, trading as Kinross Supa IGA, applied to the Fair Work Commission for approval of The Kinross Supa IGA Agreement 2014. The application arose from a dispute concerning the terms and conditions of employment for certain employees within the retail chain. The primary focus of the application was on whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The legal issues before the Commission involved determining whether the agreement met the necessary criteria for approval, including whether it provided for fair and reasonable terms, and if it complied with specific requirements such as the no-disadvantage test. The Commission had to assess if the proposed agreement provided for the protection of employees' rights and interests, while also considering the balance of power between the employer and the employees. The Commission also needed to evaluate whether the agreement adhered to the procedural requirements for approval.

After considering the submissions from both parties, the Commission found that the agreement provided for fair and reasonable terms and conditions of employment. The Commission was satisfied that the proposed agreement met the no-disadvantage test and complied with the procedural requirements for approval. The Commission approved the application and accepted the agreement, ensuring that it would be registered with the Fair Work Commission, thereby making it a legally binding enterprise agreement.

The final orders included the approval and registration of The Kinross Supa IGA Agreement 2014 as a registered enterprise agreement under the Fair Work Act 2009, effective from the date of registration. The agreement was to be binding on all employees who were covered by it and would govern their terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established