G.J.E. Pty Ltd

[2012] FWA 8232

[2012] FWA 8232

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

G.J.E. Pty Ltd
(AG2012/9480)

COMMISSIONER GOOLEY MELBOURNE, 21 SEPTEMBER 2012

All Equipment Hire Enterprise Agreement 2012.

[1] G.J.E. Pty Ltd (the Applicant) lodged an application for approval of the All Equipment Hire Enterprise Agreement 2012 (the Agreement) on 28 June 2012.

[2] In the statutory declaration filed with the application, Mr Gordon Elley deposed that the employees were award free.

[3] The classifications covered by the Agreement included:

• A hire serviceperson who cleaned and maintained the equipment, serviced client needs and general administration, loading and unloading and delivering hire equipment and cleaning and maintaining the showroom, yard and storage spaces.



• A hire controller who did all the duties of a serviceperson but in addition supervised and trained servicepersons, maintained and improved client relations, opened and closed the branch, managed storage, bookings and movement of hire equipment in or out of the branch, processing paper work and data entry, follow up with clients, managing the servicing and repairing of equipment and ordering.



• A hire manager supervised hire controllers and servicepersons, managed rosters, resolved complaints, prepared reports on sales, managed OHS, managed employee issues, assisted and supported the employer, managed mandatory testing and did banking.

[4] On 16 July 2012 I wrote to the Applicant asking for submissions to support the contention that the employees were award free. In that email I listed a number of awards that might apply to the employees.

[5] The solicitors for the Applicant sought an adjournment until after 31 August 2012 as their client was overseas. I advised that I would not grant an extension of time to lodge the submissions but in the event that I was not convinced the employees were award free, I would list the matter for hearing after 31 August 2012.

[6] Submissions were filed and the matter was listed for hearing on 3 September 2012.

The submissions of the Applicant

[7] The Applicant conducts a general equipment hire business in South Australia. 1 It employees four employees. The employees provide a customer service function in that they liaise with customers on how certain equipment operates and to finalise the rental agreements. Incidental duties include cleaning, administration and basic equipment maintenance.2

[8] The Applicant submitted that the Manufacturing and Associated Industries and Occupations Award 2010 did not apply as the Applicant is not:

(a) in the business of manufacturing equipment.

(b) basic maintenance of equipment does not involve any trade skills. It was submitted that the maintenance work was limited to cleaning, turning equipment on and off and refuelling or recharging the equipment.

(c) basic maintenance is incidental to the main customer service function which involves assisting customers with hiring equipment.

[9] The Applicant submitted that the Clerks - Private Sector Award 2010 did not apply as the employee are not employed wholly or principally to carry out clerical work.

[10] The Applicant submitted that the Storage Services and Wholesale Award 2010 did not apply as it was not in the business of selling any “produce, goods or merchandise”.

[11] The Applicant submitted that the Miscellaneous Award 2010 (Misc Award) did not apply. Clause 4.2 of the Misc Award provides that “the award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists”.

[12] The Applicant submitted that the examples given in clause 4.2 of the Misc Award were not exhaustive and the Misc Award did not apply because of the nature of the employees’ role and because they have traditionally been award free.

[13] In answer to a question at the hearing, Mr Ni advised that the business hired out equipment to consumers who walk in off the street and to contractors 3 but said the majority of custom was with other businesses.4

[14] Mr Ni submitted that the General Retail Award 2010 did not apply because the majority of the business did not cater for consumers for household use.

[15] Mr Ni submitted that the Agreement would pass the better off overall test (the BOOT) if the employees were award free but not if another modern award applied.

Consideration

[16] I do not agree that the employees of this type of business in South Australia have traditionally been award free. For example, the Retail Industry (South Australia) Award provided as follows:

“1.3.1 This Award shall be binding on all persons engaged in the industry of the occupations of persons employed (whether wholly or in part):

(a) In buying and/or purchasing and/or acquiring goods;

(b) In or about any shop in receiving, preparing for sale or hire, goods;

(c) In displaying, shelf-filling, replenishing, price entering or marking, demonstrating, promoting, or any other method of exposing or presenting for sale or hire of, goods in or about any shop;

(d) In selling or hiring goods by any means;”

[17] While this award did not apply to wholesale sellers it is not suggested that the business conducted here was a wholesale business.

[18] The Retail Industry (South Australia) Award was one of the awards superseded by the General Retail Award 2010.

[19] The General Retail Award 2010 provides at clause 4.1 as follows:

“This industry award covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16—Classifications to the exclusion of any other modern award. The award does not cover employers covered by the following awards:

• the Fast Food Industry Award 2010;



• the Meat Industry Award 2010;



• the Hair and Beauty Industry Award 2010; or



• the Pharmacy Industry Award 2010.”

[20] The general retail industry is defined as follows:

“general retail industry means the sale or hire of goods or services to final consumers for personal or household consumption including:

• food retailing, supermarkets, grocery stores;



• department stores, clothing and soft goods retailing;



• furniture, houseware and appliance retailing;



• recreational goods retailing;



• personal and household goods retailing;



• household equipment repair services;



• bakery shops;




and includes:

• customer information and assistance provided by shopping centres or retail complexes;



• labour hire employees engaged to perform work otherwise covered by this award; and



• newspaper delivery drivers employed by a newsagent”

[21] It is clear that the Applicant hires goods to final consumers including both contractors and members of the general public who walk in off the street. It is clear that the purchasers use the goods themselves and do not on hire these goods to others. This business is no different to a store which sells products both to members of the public and tradespeople. A paint shop does not cease to be a retail outlet because in addition to selling paint to members of the public, it also sells to professional painters even if the majority of its business comes from professional painters.

[22] I find that the relevant award for the purpose of the BOOT is the General Retail Award 2010.

[23] I therefore have concerns that the Agreement does not pass the BOOT because, for example, the hourly rate of pay for a hire service person is less than the transitional rate in the General Retail Award 2010. Further the Agreement provides for lesser benefits than those provided for in the General Retail Award 2010.

[24] I advised the Applicant at the hearing that I would issue a decision on the relevant award for the purpose of the BOOT and provide it with the opportunity to consider the decision and provide any undertakings it would want to be considered before a final decision was issued.

[25] I will list this matter for further hearing.

[26] If the Applicant wishes to provide any undertakings prior to the hearing I will consider them prior to the hearing and if I am satisfied that the Agreement passes the BOOT and that the effect of accepting the undertaking is not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement I will change the hearing to an e-hearing.

COMMISSIONER

 1   Submissions of the Applicant at [2]

 2   Ibid at [6]-[7]

 3   Transcript of hearing

 4   Ibid

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