Kmart Australia Limited

[2013] FWCA 7371

[2013] FWCA 7371

FAIR WORK COMMISSION

DECISION

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

Kmart Australia Limited
(AG2013/7874)

EASTERN CREEK (NUW) DISTRIBUTION CENTRE ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 24 SEPTEMBER 2013

Application for approval of the Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Eastern Creek (NUW) Distribution Centre Enterprise Agreement 2013 (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.

Extension of time

[2] The application was lodged at Melbourne on 1 August 2013. Section 185(3)(a) of the Actprovides that an application for approval must be made within 14 days after the Agreement is made. I note that the application was lodged out of time. Section 185(3)(b) of the Actconfers a discretion on FWC to extend time. In light of the reasons provided by the Applicant, I have decided to exercise the discretion provided by subsection 185(3)(b) of the Act and extend time accordingly.

[3] On 2 September 2013, the Commission alerted the Applicant to a number of concerns it had with aspects of the Agreement. These issues concerned the ordinary span of hours, shift penalty rates and meal allowance in the Agreement.

[4] Correspondence was received from the Applicant on 9 September 2013.

Ordinary hours and penalty rates

[5] The Commission notes that the Agreement at Part 5 - Hours of work, and in particular, sub clause 5.1 provides for ordinary hours of work that are greater than the ordinary hours of work provided for in the Storage Services and Wholesale Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test. Further, the shift penalties an employee would receive for working an early morning shift, afternoon shift and night shift is less than what the employee would receive under the Award.

[6] The Applicant has provided a number of indicative rosters and calculations and has advised that the rates of pay in the Agreement are significantly higher, and compensate for the additional increase in the span of ordinary working hours and the shift penalty being lower than the Award.

Meal allowance

[7] The Commission notes that the Agreement provides a meal allowance of $12.64 from 1 June 2013. The Award at sub clause 16.1 provides a meal allowance of $15.14.

[8] The Applicant has provided calculations and advised that the overtime hourly rate of pay in the Agreement is higher and compensates for the difference in the meal allowance between the Agreement and the Award.

[9] Upon review of the Applicants correspondence with respect to the ordinary hours of work and meal allowance, I am satisfied that employees under the Agreement would be better off overall.

[10] The Agreement covers employees of the employer in the classifications team member in training, team member and team leader. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

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

[12] The National Union of Workers 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) I note that the Agreement covers this organisation.

[13] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 1 October 2013. The nominal expiry date of the Agreement is 31 May 2016.

COMMISSIONER

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