Masters Home Improvement

[2014] FWCA 6389

[2014] FWCA 6389

FAIR WORK COMMISSION

DECISION

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

Masters Home Improvement
(AG2014/1818)

MASTERS AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 12 SEPTEMBER 2014

Application for approval of the Masters Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Masters 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] On 21 August 2014, the Commission wrote to the Applicant and The Australian Workers’ Union (AWU) and the Shop, Distributive and Allied Employees Association (SDA), as bargaining representatives for the Agreement, in relation to concerns it had with the Agreement. In particular, the concerns related to part-time employees, casual employees, the ordinary hours of work, weekend penalties and breaks between work periods.

[3] Correspondence was received from the Applicant on 28 August 2014.

Undertaking

Part-time employees

[4] Upon request from the Commission the Applicant has provided an undertaking with respect to clause 3.3 - Part time associates, that any agreement to vary the regular pattern of work will be made in writing before the variation occurs as per the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test.

[5] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[6] Pursuant to s.190(4) of the Act, the SDA and the AWU have been made aware of the undertaking provided. The bargaining representatives have not advised of any concerns with the undertaking provided.

Casual employees

[7] In its correspondence to the Applicant, the Commission sought clarification in relation to sub clause 3.4.1 of the Agreement which states that casual associates may be engaged on an hourly basis at any time on any day of the week and sub clause 4.5.4 which states that a casual associate must not be rostered to work less than three consecutive hours on any one day.

[8] The Applicant has advised the Commission that clause 3.4.1 is intended to make it clear that a casual employee can be engaged to perform ordinary work at any particular time over the 24 hours of the seven days of the week and that any such engagement of a casual employee will remain subject to the restrictions set out in clause 4.5 of the Agreement.

Ordinary hours of work and weekend penalties

[9] The ordinary hours of work provided for at clause 4.1 - Span of hours, and in particular, sub clause 4.1.1 of the Agreement are greater than the ordinary hours of work provided under the Award.

[10] Further, the Commission notes that the Agreement does not provide a penalty for work undertaken on a Saturday and provides a lesser penalty than that provided under the Award for work on Sundays.

[11] The Commission requested the Applicant to provide correspondence, including indicative rosters and calculations to demonstrate how employees are better off overall under the Agreement despite the Agreement containing a greater span of ordinary hours of work and weekend penalties which are less than the Award.

[12] The Applicant submits that the Agreement contains higher wage rates than those under the Award which compensates for the different span of hours and penalty rate structure. The Applicant has provided a number of indicative rosters and calculations to demonstrate how employees are better off overall under the Agreement.

Breaks between work periods

[13] In its correspondence to the Applicant the Commission noted that the Agreement provides that full-time, part-time and casuals employees will be rostered for at least a 10 hour break between the completion of work on one day and the commencement of work on the following day. The Award provides that all employees will be granted a 12 hour rest period between the completion of work on one day and the commencement of work on the next day and that the period of 12 hours may be reduced to not less than 10 hours only by agreement between an employer and an employee or employees.

[14] While the Commission requested an undertaking with respect to this concern, the Applicant submits that the 10 hours break provision reflects no more than that a valid majority of employees within its business have agreed, by approving the Agreement, to have the required break between work shortened to 10 hours.

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

Model flexibility term

[16] In the Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17), the employer declared that the flexibility term could be found at clause 2.1 of the Agreement. Clause 2.1 of the Agreement states that the entitlement of an associate to flexibility will be as prescribed in the provisions of Schedule 2.2 of the Regulations (defined as the Fair Work Regulations).

[17] As such, the model flexibility term found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) will be taken to be a term of the Agreement.

[18] A copy of the model flexibility term is attached at Annexure B.

[19] The Australian Workers’ Union and the Shop, Distributive and Allied Employees Association being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[20] 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.

[21] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 19 September 2014. The nominal expiry date of the Agreement is 1 February 2017.

[22] This decision is to be brought to the attention of the employees.

COMMISSIONER

Annexure A

Annexure B

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