JBJ Investments Pty Ltd

[2014] FWCA 4594

[2014] FWCA 4594

FAIR WORK COMMISSION

DECISION

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

JBJ Investments Pty Ltd
(AG2014/1316)

JBJ INVESTMENTS PTY LTD ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	PERTH, 9 JULY 2014

Application for approval of the JBJ Investments Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the JBJ Investments Pty Ltd 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 via its representative on 30 June 2014, in relation to concerns it had with the Agreement. In particular, the concerns related to the hours of work, public holiday penalties and superannuation. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 7 July 2014.

Undertakings

Hours of work

[4] In its correspondence to the Applicant the Commission noted that clause 7 - Hours of Work, and in particular, sub clause 7.1 of the Agreement provides that the ordinary hours of work can be worked on any day Monday to Sunday, inclusive of public holidays. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test provides for the following span of ordinary hours:

● Monday to Friday: 7:00am to 9:00pm
● Saturday: 7:00am to 6:00pm
● Sunday 9:00am to 6:00pm

[5] In its correspondence to the Commission, the Applicant states that it relies upon the provision under the Award at sub clause 27.2(b)(iii), that provides in the case of retailers whose trading hours extend beyond 9.00pm Monday to Friday or 6.00pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00pm.

[6] The Applicant has provided an undertaking that the ordinary hours of work for retail employees under the Agreement will be:

● Monday to Friday: 7:00am to 11:00pm
● Saturday: 7:00am to 11:00pm
● Sunday: 9:00am to 11:00pm.

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

[8] 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.

Public holidays

[9] With respect to clause 13 - Public Holidays of the Agreement, the Commission noted in its correspondence to the Applicant that the penalty received for work on a public holiday was less than the penalty provided under the Award.

[10] The Commission requested a number of indicative rosters and calculations to demonstrate that employees are better off under the Agreement when they work on a public holiday.

[11] The Applicant has provided a number of indicative rosters and calculations that demonstrate employees are better off overall under the Agreement than they would be under the Award where they work in a roster period which includes public holidays.

[12] Upon review of the indicative rosters and calculations I am satisfied that employees would be better off overall despite the public holiday penalties being less than the penalties provided under the Award.

Superannuation

[13] In its correspondence to the Applicant the Commission noted that clause 15 - Superannuation, and in particular, sub clause 15.1 of the Agreement does not name the employer’s default superannuation fund and thus does not satisfy the requirements of section 194(h) of the Act.

[14] In response to the Commission’s request for clarification of this matter, the Applicant has advised that the default superannuation fund is REST Industry Super.

[15] Upon review of the correspondence and undertakings, I am satisfied that employees would be better off overall under the Agreement.

[16] 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.

[17] 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 four years from the date of operation.

COMMISSIONER

Annexure A

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