Metcash Food & Grocery Convenience Division Pty Limited T/A Independent Grocers

[2014] FWCA 4680

[2014] FWCA 4680

FAIR WORK COMMISSION

DECISION

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

Metcash Food & Grocery Convenience Division Pty Limited T/A Independent Grocers
(AG2014/6160)

INDEPENDENT GROCERS ALICE SPRINGS ENTERPRISE AGREEMENT 2014

Storage services
COMMISSIONER BULL	PERTH, 14 JULY 2014

Application for approval of the Independent Grocers Alice Springs Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Independent Grocers Alice Springs 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 and the National Union of Workers (NUW), as a bargaining representative for the Agreement on 11 June and 2 July 2014, in relation to concerns it had with the Agreement. In particular, the concerns related to the hours of work, and penalties on Sundays and Public Holidays.

[3] Correspondence was received from the Applicant on 18 and 27 June and 8 and 10 July 2014.

Undertakings

Hours of work

[4] The Commission noted that the Agreement at clauses 6.3 and 6.4 provides for a spread of ordinary hours that are greater than the spread of ordinary hours 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.

[5] The Applicant has provided a number of indicative rosters and calculations. Upon review of the rosters and calculations the Commission noted that a Grade 1 part-time employee who worked 7 hours on a Saturday would not be better off overall under the Agreement.

[6] Upon request from the Commission the Applicant has provided an undertaking that where a Grade 1 part-time employee works a 7 hour shift between 9:00am to 4:30pm on a Saturday, the Applicant will pay the difference between what the employee would have received under the Award, being $51.61.

[7] The Applicant has provided an undertaking with respect to full-time and part-time employees that despite the spread of ordinary hours being greater under the Agreement than the Award employees will be better off overall. Where the Applicant identifies a shortfall in the payment resulting from working the ordinary hours stipulated in the Agreement as compared to the Award, the difference will be applied by the Applicant to the employee to ensure there is no disadvantage.

Minimum hours on a Sunday and Public Holiday

[8] The Commission notes that clauses 12.3 and 12.4 of the Agreement provide that the payment of the penalty rate on a Sunday and Public Holiday will be for a minimum of two hours work. The Award provides that the payment of the penalty rate on both Sundays and Public Holidays will be for a minimum of four hours work.

[9] The Applicant has provided an undertaking that the minimum number of hours on a Sunday and Public Holiday as provided in the Award will be applied.

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

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

[12] I have sought the views of the NUW in respect of the undertakings, pursuant to s.190(4) of the Act. The NUW has not advised of any concerns with the undertakings provided.

[13] 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.

[14] 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.

[15] The NUW 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.

[16] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 21 July 2014. The nominal expiry date of the Agreement is 12 May 2016.

COMMISSIONER

Annexure A

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