Glassons Australia Limited T/A Glassons

[2016] FWCA 5873

[2016] FWCA 5873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Glassons Australia Limited T/A Glassons
(AG2016/3624)

GLASSONS ENTERPRISE AGREEMENT 2016

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 14 OCTOBER 2016

Application for approval of the Glassons Enterprise Agreement 2016.

[1] An application has been made by Glassons Australia Limited T/A Glassons (the applicant) for the approval of an enterprise agreement known as the Glassons Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers all Australian retail team members engaged by the employer, and does not cover Head Office Team Members. As per s.186(3A) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen taking into account the operational distinction of the employees covered.

[3] The General Retail Industry Award 2010 (the Award) is the relevant reference instrument for the purposes of the better off overall test (BOOT) as required under s. 186 of the Act.

[4] The Shop, Distributive and Allied Employees Association (the SDA) wrote to the Commission advising that they had an interest in and a number of concerns about the terms of the Agreement. The SDA sought to be provided with copies of all materials filed by the applicant to assist them to respond appropriately.

[5] The Commission, in the interests of transparency 1, permitted the SDA to attend the Fair Work Commission offices to access the material filed in relation to the application.

[6] The Commission wrote to the applicant identifying the following concerns with the terms of the Agreement:

● The consultation term did not meet the requirements of the Act;

● The Agreement appeared to limit unpaid carer’s leave to two days in total, rather than two days per occasion;

● The Agreement appeared to limit a casual employee’s entitlement to unpaid compassionate leave to the event of a death in the employee’s immediate family or household;

● The Agreement allowed the employee and employer to mutually agree at certain times that employees would work outside of the ordinary hours of work at ordinary rates;

● The Agreement only provided evening penalties in certain circumstances, which would permit employees to be rostered up to 6.30pm Monday to Wednesday and 9.30pm Thursday to Friday without the payment of evening penalties; and

● The Agreement did not afford part-time employees the same protections as the Award.

[7] A concern was also raised by the Commission in relation to the explanation of clause 4.9 of the Agreement to employees, and whether it could be considered that there was genuine agreement under section 188 of the Act.

The consultation term

[8] The consultation term at clause 2.3 of the Agreement only requires consultation in relation to changes to regular rosters and ordinary hours of work which are not mutually agreed.

[9] The Commission noted that this restriction did not appear to satisfy s.205 of the Act which has wider application.

[10] 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.

Unpaid carer’s leave

[11] The Agreement provides at clause 6.1.12 that unpaid carer’s leave of two days is available to employees who have exhausted their accrued personal leave, and that casual employees may also access this unpaid entitlement.

[12] Section 102 of the Act provides that an employee is entitled to two days of unpaid carer’s leave for each permissible occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness, injury or unexpected emergency.

[13] In response to the request of the Commission, the applicant provided an undertaking that the period of unpaid carer’s leave under clause 6.1.12 would be two days per occasion that it is required.

Unpaid compassionate leave for casuals

[14] The Agreement provides at clause 6.2.6 that casual employees will be entitled to two days unpaid compassionate leave upon the death of an immediate family member or a member of the employee’s household.
[15] Section 104 of the Act provides that employees are entitled to two days of compassionate leave for each occasion where a member of the employee’s immediate family contracts or develops a personal illness or sustains a personal injury that poses a serious threat to his or her life, or dies.

[16] In response to the request of the Commission, the applicant provided an undertaking that a casual employee’s entitlement to compassionate leave under clause 6.2.6 may also be used where a member of their immediate family or household contracts or develops a personal illness or suffers a personal injury that poses a serious threat to his or her life.

Mutual agreement to work without the payment of overtime of penalties

[17] The Commission noted that clause 5.2.11 of the Agreement provides that the employer and employees may mutually agree, at certain times, that employees will work hours or work patterns outside of the ordinary hours of work at ordinary rates.

[18] The Commission was not satisfied that the rates of pay were high enough to compensate employees in the event that they were regularly working hours or work patterns outside of the ordinary hours without the payment of penalty rates.

In response to the request of the Commission, the applicant provided an undertaking as follows:
“In relation to clause 4.6 of the Agreement, Glassons has set remuneration for each classification to ensure Employees are better off overall under this Agreement than under the General Retail Industry Award 2010 (“Award”) which would otherwise apply. Where an Employee considers that over a roster cycle (as stipulated in clause 5.1.1 of the Agreement), they are not better off overall under this Agreement than under the Award, they may request a comparison of the wages received for that roster cycle under this Agreement and the wages they would otherwise have been provided with under the Award. Any shortfall in wages which would otherwise be payable under the Award will be paid to the Employee in the next pay period after the review is completed. If the Employee and Glassons cannot reach agreement on the wages which should be paid, the Grievance Procedure in clause 2.4 of the Agreement will be followed and the parties will agree to the Fair Work Commission arbitrating and making a binding determination to resolve the matter.”

[19] The Commission is satisfied that this undertaking creates an enforceable right to payments to employees equal to or higher than those contained in the Award, and has no limitation on its availability. The undertaking is accepted on the basis that it is a possibility that an employee would be worse off under the Agreement clause than the Award provision.

The lack of evening penalties in the Agreement

[20] The Commission noted that clause 5.3 of the Agreement only provides evening penalties where a store’s usual trading hours are extended beyond those specified in clause 5.2.1. This would permit employees to be rostered up to 6.30pm Monday to Wednesday and 9.30pm Thursday and Friday.

[21] The Commission was not satisfied that base rates of pay were high enough to compensate employees in the event that they were regularly working between 6pm and 9.30pm.

[22] In response to the request of the Commission, the applicant provided the undertaking referenced above at [19].

[23] The Commission considered that a reconciliation clause such as the above should not be used to cure recognised deficiencies identified in the BOOT, as opposed to the circumstances described in [20] above.

[24] The applicant has provided a revised undertaking increasing the rates of pay for employees working between 6pm and 9.30pm so that those employees will be better off overall under the Agreement.

Part-time employees under the Agreement

[25] The Commission noted that clause 3.2 of the Agreement provides that, on commencement of employment, the employer would provide the employee with details of their expected contracted hours which may change in accordance with clause 5.1.2

[26] The Commission was not satisfied that the Agreement provided the same protections to part-time employees as the Award.

[27] In response to the request of the Commission, the applicant provided an undertaking as follows:

“In relation to clause 3.2 of the Agreement, upon commencement of employment Glassons will also provide each part time employee with their expected working days and expected hours of work each day, including expected start and finish times and any variation to these hours will be by Agreement”

Undertakings provided

[28] The undertakings provided by the applicant address the Commission’s concerns in relation to unpaid care’s leave, compassionate leave for casuals, agreement to work additional hours without penalty rates, the lack of evening penalties in the Agreement and the protections afforded to part time employees.

[29] The undertakings are taken to be a term of the Agreement and a copy is marked Annexure A. 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 a substantial change to the Agreement, as per s.190(3)(b) of the Act.

Genuine Agreement

[30] The Commission noted that clause 4.9 of the Agreement provides that any changes in the Award to Saturday, Sunday and public holiday penalties would be mirrored in the Agreement taking effect from the first full pay period following the change in the Award having effect.
[31] The Commission sought further information as to what steps were taken to explain the implications of this clause to employees. The Commission was concerned that if the clause was not adequately explained to employees there may not have been genuine agreement as per the requirement under section 188 of the Act.

[32] The applicant provided submissions explaining the processes that it undertook to explain the terms of the Agreement to employees.

[33] Notably, the applicant advised that there were no questions asked about clause 4.9 and that the material distributed to employees did not specifically address clause 4.9.

[34] The applicant submitted that the meaning of the clause is clear on its face, and that all reasonable steps were taken to ensure that explanations of the Agreement were provided and that employees had ample opportunity to ask questions about any aspect of the Agreement.

[35] Having considered the submissions provided by the applicant, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that the requirements of section 188 of the Act have been met.

SDA submissions regarding their objections to the Agreement

[36] The SDA filed submissions in the Commission on 28 July 2016 detailing concerns that it had with the Agreement.

[37] The applicant was invited to, and did on 8 August 2016, file submissions in response to the concerns raised by the Commission and the submissions lodged by the SDA.

[38] Having considered both the submissions lodged by the SDA and those provided by the applicant, the Commission is satisfied that the concerns raised by the SDA have either been addressed by the undertakings provided or pose no impediment to the Agreement’s approval.

Approval

[39] Taking into account the undertakings provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

[40] The undertakings should be brought to the attention of the employees covered by the Agreement by the applicant.

[41] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[42] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 21 October 2016. The nominal expiry date of the Agreement is 13 October 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE420645  PR584449>

Annexure A

 1   Duncan Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited T/A Coles and Bi Lo [2015] FWCFB 7090 at [47].