National Tertiary Education Industry Union

[2013] FWCA 8016

[2013] FWCA 8016

FAIR WORK COMMISSION

DECISION

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

National Tertiary Education Industry Union
(AG2013/8772)

THE CAMPUS BOOKSTORE COLLECTIVE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 14 OCTOBER 2013

Application for approval of The Campus Bookstore Collective Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as The Campus Bookstore Collective 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.

Ordinary hours

[2] The Commission notes that the Agreement at clause 4 - Hours of work, and in particular, sub clause 4.1.1 provides for ordinary hours of work that are 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.

[3] The O Group Limited (the employer) has provided an undertaking that the ordinary hours of work at clause 4.1.1 of the Agreement will have no effect and will be replaced by the ordinary hours of work as per clause 27.2(a) of the Award.

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

[5] I have sought the views of the National Tertiary Education Industry Union (NTEU) as a bargaining representative in respect of the undertaking, pursuant to s.190(4) of the Act. The NTEU has not advised of any concerns with the undertaking provided.

Flexibility term

[6] The Act requires at s.202(1) that an enterprise agreement must include a flexibility term. The terms of the agreement that may be varied must be included in the flexibility term.

[7] The Commission raised concerns with respect to clause 6 - Individual Flexibility Arrangements of the Agreement. Sub clause 6.2 is in the following terms:

6.2 A staff member and the Company may agree to make an individual flexibility arrangement to vary the effect of terms of this Agreement, which will deal with one or more of the following matters:

6.2.1 Structuring a pattern of working hours to enable staff members to work on a full time or fractional seasonal basis for a portion of a year receiving salary payments averaged the whole year;

6.2.2 Accelerated leave arrangements for the taking of excess annual leave balances (in excess of 60 days) to bring the balance to not less than 30 days. An accelerated leave arrangement is only available once in the life of the Agreement for each individual staff member and such accelerated leave may be accessed at no higher rate than double pay.

6.2.3 Additional unpaid parental leave or unpaid carer’s leave.

6.2.4 Allowing for different dates to be agreed between the Company and the staff member for the taking of annual leave that is otherwise rostered and deemed in accordance with clause 5.2.4 of this Agreement.

[8] In correspondence to the NTEU and the employer on 26 September 2013 the Commission requested further information as to what terms of the Agreement the flexibility clause seeks to vary and what additional flexibility is provided that is not already provided by the Agreement.

[9] On 3 October 2013, the NTEU provided correspondence outlining what terms of the Agreement the flexibility clause seeks to vary and what additional flexibility is provided.

[10] With respect to sub clause 6.2.1 of the Agreement, the NTEU and the employer concede that this term is provides no additional flexibility and states in its correspondence that this term is ‘problematic and should be struck from the Agreement’.

[11] With respect to subclause 6.2.2, 6.2.3 and 6.2.4 of the Agreement, the NTEU in its correspondence provided the following response:

6.2.2 - relates to 5.2.1 in that it allows for leave to be paid at up to double the rate that it is taken, where there is a balance in excess of 60 days.

6.3.3 - relates to 5.6.3(b) in that it allow (sic) for unpaid parental leave in excess of the twelve months provided for by the clause. The parties agree that the reference to carers leave is unnecessary as clause 5.4.14 already provides for this flexibility.

6.2.4 - relates to 5.2.4(c) in that it allows for the requirement to maintain a ‘leave reserve’ be waived.

[12] Upon review of the correspondence from the NTEU, I am prepared to accept that the flexibility clause provides some additional flexibility in order to meet the genuine needs of the employee and employer.

Consultation Term

[13] The Commission advised the Applicant and the employer that the consultation term found at clause 2.6 of the Agreement was not consistent with the terms that must be included pursuant to s.205(1) of the Act.

[14] In correspondence received from the Applicant on the 3 October 2013, it advised that the parties note that the model consultation term will apply.

[15] The Agreement does not contain a consultation term that meets the requirements as set out at s.205(1) of the Act. Pursuant to s.205(2), the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

[16] The Agreement covers employees engaged in the provision of retail services or exclusively in support of the provision of such services whose salaries fall within the salary scales in schedule A of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[17] 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.

[18] The National Tertiary Education Industry Union 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.

[19] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 21 October 2013. The nominal expiry date of the Agreement is 31 December 2015.

COMMISSIONER

Annexure A

Annexure B

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