Mount Barker Co-operative Limited

[2014] FWCA 5346

[2014] FWCA 5346

FAIR WORK COMMISSION

DECISION

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

Mount Barker Co-operative Limited
(AG2014/6538)

MOUNT BARKER CO-OPERATIVE LIMITED ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	PERTH, 7 AUGUST 2014

Application for approval of the Mount Barker Co-operative Limited Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Mount Barker Co-operative Limited 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 on 14 July 2014, in relation to concerns it had with the Agreement. In particular, the concerns related to part-time employees, the ordinary span of hours of work and overtime.

[3] Correspondence was received from the Applicant on 16 July 2014 and 30 July 2014.

Undertakings

Part time hours

[4] Upon request from the Commission the Applicant has provided an undertaking with respect to clause 3.3 - Part time employees, that any agreement to vary the regular pattern of work of part-time employees will be made in writing before the variation occurs.

Ordinary span of hours

[5] In its correspondence to the Applicant, the Commission noted that the Agreement did not provide for an ordinary span of hours. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test provides for the following ordinary span of hours are:

• Monday to Friday: 7:00am to 9:00pm



• Saturday: 7:00am to 6:00pm



• Sunday: 9:00am to 6:00pm

[6] The Applicant has provided an undertaking that the ordinary span of hours o under the Agreement will be:

• Monday to Friday: 7:00am to 9:00pm



• Saturday: 7:00am to 6:00pm



• Sunday: 9:00am to 6:00pm

Overtime penalties

[7] With respect to clause 5.3 - Penalties of the Agreement, the Commission in its correspondence to the Applicant, compared the overtime penalties of the Agreement with the Award. The Commission noted that the Agreement at clause 5.3 prescribed 150% for the first 6 hours over 76 hours in a 2 week cycle and 200% for overtime hours above this in the employees 2 week cycle.. The Award at clause 29.2 prescribes hours worked in excess of ordinary hours are to be paid at time-and-a-half for the first 3 hours and double time thereafter.

[8] The Commission requested a number of indicative rosters and calculations to demonstrate that employees are better off under the Agreement when they work overtime as prescribed by the Agreement compared with the corresponding entitlement under the Award.

[9] The Applicant has provided an undertaking that the first 3 hours of overtime over 38 hours in a one week period will receive a 150% penalty and any additional overtime hours worked during the same one week period will receive a 200% penalty.

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

[11] The undertakings were provided to the bargaining representatives pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertakings provided.

[12] 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.

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

[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 Agreement is approved. In accordance with s.54(1)(b) the Agreement will operate from the start of the first full pay period from the date of this approval. The nominal expiry date of the Agreement is 15 May 2016.

COMMISSIONER

Annexure A

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