GWA Group Limited T/A GWA Bathrooms & Kitchens

[2014] FWCA 4588

[2014] FWCA 4588

FAIR WORK COMMISSION

DECISION

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

GWA Group Limited T/A GWA Bathrooms & Kitchens
(AG2014/1236)

GWA BATHROOMS AND KITCHENS NORTHERN REGION ENTERPRISE AGREEMENT 2014

Storage services
COMMISSIONER BULL	PERTH, 9 JULY 2014

Application for approval of the GWA Bathrooms and Kitchens Northern Region Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the GWA Bathrooms and Kitchens Northern Region Enterprise 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.

[2] The Commission wrote to the Applicant on 2 July 2014, in relation to concerns it had with the Agreement. In particular, the concerns related to the annual leave loading, hours of work and meal breaks. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 4 July 2014.

Undertakings

Annual leave loading

[4] In its correspondence to the Applicant the Commission noted at clause 13 - Annual leave, in particular, sub clause 13.8 of the Agreement it provides that where an employee takes annual leave before it has been accrued the employee will not be entitled to annual leave loading.

[5] The Commission requested correspondence outlining how employees are better off overall despite the Storage Services and Wholesale Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test not restricting the entitlement of leave loading where an employee takes annual leave in advance.

[6] The Applicant has provided an undertaking with respect to sub clause 13.8 that where an employee is granted annual leave in advance; annual leave loading will be paid during the period of leave taken.

Hours of work

[7] The Commission notes that the Agreement at clause 25 - Hours of work, in partiuclar, sub clauses 25.2 and 25.3 provides for a span of ordinary hours, Monday to Friday between 6:00am and 6:00pm. The Award provides that the span of ordinary hours will be Monday to Friday between 7:00am and 5:30pm.

[8] The Commission requested the Applicant to demonstrate how employees are better off overall despite the span of ordinary hours under the Agreement being greater than the Award.

[9] In its correspondence to the Commission the Applicant relies upon clause 22.2(b) of the Award which provides that the span of ordinary hours may be altered by up to one hour at either end of the span, by agreement between an employer and the majority of employees concerned or between the employee and the employer. The Applicant submits that as the employees have agreed to a 6:00am start it would be consistent with the Award if the span of ordinary hours in the Agreement was set at 6:00am to 5:30pm.

[10] The Applicant has provided an undertaking with respect to sub clause 25.3 of the Agreement that the span of ordinary hours will be between 6:00am and 5:30pm.

Meal breaks

[11] The Agreement at clause 26 - Meal breaks, and in particular, sub clause 26.2 provides that an employee will not be required to work for more than five hours without a break for a meal, but in any case not more than six hours. The Award provides that no employee will be required to work longer than five hours without a break for a meal. The Commission requested the Applicant to demonstrate how employees are better off overall where they work more than five hours without a meal break or alternatively provide an undertaking in accordance with the meal break entitlement under the Award.

[12] The Applicant has provided an undertaking with respect to clause 26 of the Agreement that no employee will be required to work longer than five hours without a break for a meal in accordance with clause 23 of the Award.

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

[14] 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.

[15] 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.

[16] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 16 July 2014. The nominal expiry date of the Agreement is 31 March 2017.

COMMISSIONER

Annexure A

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