Nuance Group (Australia) Pty Limited

[2014] FWCA 2285

[2014] FWCA 2285

FAIR WORK COMMISSION

DECISION

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

Nuance Group (Australia) Pty Limited
(AG2014/3981)

NUANCE GROUP (AUSTRALIA) PTY LTD - NUW - SYDNEY AIRPORT AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 7 APRIL 2014

Application for approval of the Nuance Group (Australia) Pty Ltd - NUW - Sydney Airport Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Nuance Group (Australia) Pty Ltd - NUW - Sydney Airport 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] On 26 March 2014, the Commission wrote to the Applicant and the National Union of Workers (NUW), being a bargaining representative for the Agreement with respect to concerns it had with the Agreement. In particular, the concerns related to the ordinary hours of work, penalties, casual rates of pay and allowances.

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

Ordinary hours of work

[4] In its correspondence to the Applicant and the NUW, the Commission noted that the span of ordinary hours of work provided for at clause 21 - Hours of work, in particular, sub clause 21.2 were greater than the span of ordinary hours provided for under the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purposes of the better off overall test.

[5] Where the ordinary span of hours are greater than those in the Award, the Applicant in its correspondence states that it relies upon the provision 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 has provided to the Commission a number of indicative rosters and calculations to demonstrate employees are better off overall under the Agreement despite the increased span of ordinary hours.

Rates of pay and penalties

[7] The Commission advised the Applicant and the NUW in its correspondence that the Sunday rates of pay provided for at Appendix B of the Agreement and the casual rate of pay for an employee who works on a public holiday appeared to be less than the rates of pay provided under the Award.

[8] Based on the indicative rosters and calculations provided by the Applicant, they demonstrate that employees are better off overall under the Agreement despite the reduced rates of pay on Sundays and public holidays for casual employees.

Allowances

[9] The Commission notes that the Agreement provides for clothing and meal allowances at Appendix C – Allowances. In particular, the Agreement provides for a clothing allowance from 30/9/13 of $5.67 per week. Pursuant to clause 20.2(b) of the Award it provides for a special clothing allowance for full-time employees of $6.25 per week and part-time or casual employees an allowance of $1.25 per shift).

[10] Further, the Agreement provides for a meal allowance from 30/9/13 of $8.034. Pursuant to clause 20.1(a) of the Award, it provides for a meal allowance of $16.67 and furthermore, where overtime work exceeds four hours a further meal allowance of $15.09 will be paid.

[11] The Applicant has advised the Commission that based on the indicative rosters and calculations provided and as a result of the favourable rates of pay under the Agreement, employees are better off overall despite the reduction to these allowances.

[12] Upon review of the correspondence, the indicative rosters and calculations provided by the Applicant, I am satisfied that employees are better off overall under the Agreement.

Flexibility term

[13] The Agreement does not contain a flexibility term. The model flexibility term found at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model flexibility term is attached at Annexure A.

Consultation term

[14] The Commission advised the Applicant and the NUW that the consultation term found at clause 9 - Introduction of major change in the workplace of the Agreement was not consistent with the terms that must be included pursuant to s.205(1) of the Act.

[15] The Act requires that a consultation term must allow for the representation of employees for the purposes of consultation. This representation is unrestricted, whereas, the consultation term in the Agreement provides that the Applicant will discuss significant operational change with the employees and the Union. The consultation term in the Agreement does not expressly include a term that allows for the representation of the employees.

[16] Section 190 of the Act allows the Commission to accept an undertaking from an employer when the Commission has a concern that the agreement does not meet the requirements set out in sections 186 and 187. The mandatory consultation term is not found in these sections.

[17] As 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.

[18] The Commission did not receive correspondence from the NUW.

[19] The Agreement covers employees performing work at the Sydney International and Domestic Airport in the classification levels specified in 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.

[20] 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.

[21] The NUW being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to it. In accordance with s.201(2) I note that the Agreement covers this organisation.

[22] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 14 April 2014. The nominal expiry date of the Agreement is 30 September 2016.

COMMISSIONER

Annexure A

Annexure B

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