Luxottica Retail Australia Pty Limited T/A OPSM/Laubman and Pank/Sunglass Hut

[2015] FWCA 7639

[2015] FWCA 7639

FAIR WORK COMMISSION

DECISION

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

Luxottica Retail Australia Pty Limited T/A OPSM/Laubman and Pank/Sunglass Hut
(AG2015/6438)

LUXOTTICA RETAIL ENTERPRISE AGREEMENT 2015

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 23 NOVEMBER 2015

Application for approval of the Luxottica Retail Enterprise Agreement 2015

[1] An application has been made by Luxottica Retail Australia Pty Limited (the applicant) for the approval of an enterprise agreement known as the Luxottica Retail Enterprise Agreement 2015 (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 Shop, Distributive and Allied Employees’ Association (SDA) was an employee organisation involved in the agreement making process, but did not file a statutory declaration in support of the Agreement. The Commission wrote to the SDA on 5 November 2015 requesting it advise the Commission of its intention or otherwise in the filing of the F18, and whether it wished to be covered by the Agreement. The SDA has advised that during the bargaining process, it had provided advice and assistance to a number of employees, but that was the extent of its involvement, and on that basis, would not be filing an F18 to be covered by the Agreement.

[3] The Agreement covers all of the OPSM and Laubmann and Pank retail employees excluding managers and assistant managers. As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen based on the operational distinction of the employees having been chosen.

[4] With respect to the better off overall test (BOOT) under s.193 of the Act, the Agreement, as declared in the applicant’s statutory declaration does not provide employees with a Saturday penalty loading and base rate of pay is inclusive of the annual leave loading which employees would otherwise be entitled under the General Retail Industry Award 2010 (the Award), being the relevant reference instrument for the purposes of the BOOT.

[5] However, the Agreement also contains greater entitlements when compared to the Award, these being:

1. Significantly higher base rates of pay (ranging from 6.5% to 15% above the Award rate);

2. No junior percentage rates of pay for employees engaged as a ‘dispenser’ or ‘leading dispenser’. Under the Agreement, these employees are paid the adult rate whereby under the Award, junior percentage pay rates apply to the corresponding classification; and

3. Overtime rate of 200% applies after 2 hours under the Agreement as opposed to applying after 3 hours under the Award.

Conclusion

[6] The BOOT as prescribed under s.186 of the Act is one that involves an overall assessment of the Agreement. Taking into account the greater entitlements offered under the Agreement, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

[7] 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.

[8] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 7 March 2016. The nominal expiry date of the Agreement is 30 September 2019.

DEPUTY PRESIDENT

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