Invogue Investments Pty Ltd T/A Farmer Jacks

[2016] FWCA 996

[2016] FWCA 996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Invogue Investments Pty Ltd T/A Farmer Jacks
(AG2016/2114)

INVOGUE INVESTMENTS PTY LTD ENTERPRISE AGREEMENT 2015

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 17 MARCH 2016

Application for approval of the Invogue Investments Pty Ltd Enterprise Agreement 2015.

[1] An application has been made by Invogue Investments Pty Ltd T/A Farmer Jacks (the applicant) for the approval of an enterprise agreement known as the Invogue Investments Pty Ltd Enterprise Agreement 2015 (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 employees engaged as shop assistants by the employer. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen based on the distinct operational group.

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

[4] The rates of pay under the Agreement are 3.34% to 5.06% higher than the corresponding minimum rates of pay under the Award.

[5] The ordinary hours of work and overtime payments offered under the Agreement are consistent with the Award provisions however the Saturday, evening and public holiday penalties are lower than the penalties provided under the Award. The Agreement casual loading is 20% compared with 25% provided under the Award.

Work performed on Saturdays, public holidays and evenings after 6:00pm

[6] On 4 March 2016, the Commission wrote to the applicant with respect to clause 17(c) of the Agreement which provides the following:

In the event an employee is required to perform regular work on Saturdays, public holidays and evenings after 6:00pm the employer will ensure that that employee is better off overall (based on his/her overall terms and conditions of employment) when compared against the relevant award that would otherwise apply but for the operation of the Agreement.

[7] The Commission notes that the Agreement does not provide a definition of the word “regular” which would enable the Commission to assess whether employees will be better off under the Agreement when working the abovementioned times. The applicant was requested to address the Commission on the operation of this Agreement provision and to provide an undertaking to address the Commission’s concern in relation to this provision.

Undertaking in relation to work performed on Saturdays, public holidays and evenings after 6:00pm

[8] In response to the request of the Commission, the applicant provided an undertaking such that the word “regular” was deleted from the operation of clause 17(c) of the Agreement. The applicant additionally provided an undertaking that the employer would not roster employees solely on a Saturday or a public holiday/s.

[9] The undertakings provided by the applicant address the Commission’s concerns in relation to work performed on Saturdays, public holidays and evenings after 6:00pm. These undertakings are taken to be a term of the Agreement and are attached at Annexure A of this decision.

[10] 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.

Conclusion

[11] Taking into account the higher rates of pay under the Agreement in conjunction with the applicant’s undertakings, I am satisfied that employees will be better off overall under the Agreement.

[12] 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.

[13] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 24 March 2016. The nominal expiry date of the Agreement is 30 December 2019.

DEPUTY PRESIDENT

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ANNEXURE A