Kimi Holdings Pty Ltd T/A Munno Para Foodland; Ekaton Corporation Pty Ltd T/A Munno Para Foodland

[2018] FWCA 7791

[2018] FWCA 7791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kimi Holdings Pty Ltd T/A Munno Para Foodland; Ekaton Corporation Pty Ltd T/A Munno Para Foodland
(AG2018/3292)

MUNNO PARA FOODLAND AGREEMENT 2018

Retail industry
COMMISSIONER PLATT	ADELAIDE, 20 DECEMBER 2018

Application for approval of the Munno Para Foodland Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Munno Para Foodland Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Kimi Holdings Pty Ltd T/A Munno Para Foodland; Ekaton Corporation Pty Ltd T/A Munno Para Foodland. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 23 November 2018.

[3] On 28 November 2018, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Respondent to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 19 December 2018. The undertaking deals with the following topics:

•  The Agreement will expire four years from the date of approval of the Agreement.

•  Causal employees are entitled to unpaid jury service leave in accordance with the National Employment Standards (NES).

•  In accordance with section 22 of the Fair Work Act 2009 (Cth) (the Act), leave will accrue whilst employees are on unpaid leave.

•  For the purpose of clause 17 and the NES, a shift worker is a seven day worker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week. Further, shift workers will receive an additional week of annual leave.

•  Where the Employer and employee agree that an employee will take off time instead of being paid for a particular amount of over time that has been worked by that employee:

•  The time will be taken at a time or times within that period of 6 months agreed by the employee and Employer.

•  If the employee requests at any time to be paid the overtime covered by an agreement but not taken as time off, the Employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable when the overtime was worked.

•  When time off for overtime worked has not been taken with the period of 6 months, the Employer must pay the employee for the overtime in the next pay period following those 6 months at the overtime rate applicable when the overtime was worked.

•  The Employer undertakes not to exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.

•  Pursuant to section 65 of the Act, an employee may request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 14.3(e) will apply for the overtime that has been worked.

•  If, on termination of the employee’s employment, time off for overtime by the employee to which clause 14.3(e) applies has not been taken, the employer must pay the employee for the overtime rate applicable when the overtime was worked.

•  If an employee is employed as a School-Based apprentice, or paid a Supported Wage, they will be paid an additional 1 per cent per hour in addition to the rates in the General Retail Industry Award 2010 (the Award). Employees will also receive the relevant laundry allowance from the Award.

•  For the purpose of clause 8.4, a casual employee is defined as an employee who is not engaged with a firm advance commitment from the Employer to continuing and indefinite work according to an agreed pattern of work.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.
[8] The “Shop, Distributive and Allied Employees Association (SDA)”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[9] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date 27 December 2022.

COMMISSIONER

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