Mozi Pty Ltd T/A Best & Less

[2013] FWCA 5850

[2013] FWCA 5850

FAIR WORK COMMISSION

DECISION

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

Mozi Pty Ltd T/A Best & Less
(AG2013/7175)

MOZI ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 19 AUGUST 2013

Application for approval of the Mozi Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Mozi 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.

[2] A conference was held before the Commission on 17 July 2013 to discuss a number of matters the Commission had raised in correspondence to the Applicant’s representative and the Shop, Distributive and Allied Employees Association (SDAEA), being a bargaining representative for the Agreement.

Grievance Procedure

[3] With respect to clause 2.2 - Grievance Procedure of the Agreement, the Commission notes that at sub clause 2.2(g) a party to a grievance may request that a person attend and represent them from step 2 onwards. Pursuant to s.186(6)(b) of the Act, the Commission must be satisfied that the agreement includes a terms about settling disputes that allows for the representation of employees covered by the agreement for the purposes of that procedure. The Applicant and the SDAEA advised the Commission that for the purpose of the dispute settling procedure in the Agreement a grievance does not arise until step 2.

Ordinary hours

[4] The Commission notes that the Agreement provides for ordinary hours of work at sub clause 4.4 - Sunday and Late Night Penalties that is greater than the ordinary hours of work provided for in the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test. The Applicant has confirmed that the company stores trading hours are within the normal retail trading hours as reflected in the ordinary span of hours in the Award.

[5] The Applicant submits that on occasions, such as, Christmas, extended trading hours are anticipated. These extended trading hours are facilitated for under the Award at sub clause 27.2(b)(iii), that provides in the case of retailers whose trading hours extend beyond 9.00pm Monday to Friday or 6.00pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00pm.

[6] The Applicant provided a number of indicative rosters to demonstrate that employees receive a higher rate of pay than they would under the Award. I am satisfied that employees under the Agreement would be better off overall with respect to the rates of pay and ordinary hours of work.

Undertakings

Shift breaks

[7] With respect to clause 5.4 – Working Hours Principles, in particular sub clause 5.4(b)(vi), the Applicant has provided an undertaking that pursuant to sub clause 31.2 of the Award,an employee 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, unless an agreement between the employer and an employee or employees has been reached to reduce the 12 hour rest periods to not less than 10 hours.

Meal Breaks

[8] With respect to clause 5.8 - Meal Breaks and Rest Breaks, in particular sub clause 5.8(e), the Applicant has provided an undertaking that no team member will work more than 5 hours without a meal break.

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

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

[11] The Agreement covers all of the employees working in the Company’s retail stores. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[12] 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.

[13] The SDAEA 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.

[14] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 26 August 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Annexure A

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