Oceanlily Pty Ltd T/A Farmer Jacks

[2015] FWCA 1490

[2015] FWCA 1490

FAIR WORK COMMISSION

DECISION

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

Oceanlily Pty Ltd T/A Farmer Jacks
(AG2015/1635)

OCEANLILY PTY LTD ENTERPRISE AGREEMENT 2015.

Retail industry
COMMISSIONER BULL	SYDNEY, 5 MARCH 2015

Application for approval of the Oceanlily Pty Ltd Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Oceanlily Pty Ltd Enterprise Agreement 2015 (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 2 February 2015, the Commission conducted a telephone conference with
the applicant, the applicant’s legal representative, and an employee bargaining representative with respect to concerns it had with the Agreement. In particular, the concerns related to whether the Agreement satisfied the better off overall test.

[3] Correspondence was received from the applicant on 12 February 2015 and 3 March 2015 addressing the concerns identified by the Commission.

Better off overall test (BOOT)

[4] With respect to the BOOT, the Commission noted that the following entitlements under the Agreement were lower when compared to the General Retail Industry 2010 (the Award), being the relevant award for the purposes of the BOOT. The Commission requested the applicant demonstrate how employees would be better off overall under the Agreement when they would receive higher entitlements under the Award.

Rates of Pay for an “In Charge Shop Assistant”

[5] With respect to clause 17- Rates of Pay, the Commission noted that the rate of pay for an “In Charge Shop Assistant” was not specified, rather under clause 18 of the Agreement, an “In Charge Shop Assistant” would receive an “In Charge Allowance” in addition to the rate of pay for a shop assistant.

Undertaking

[6] At the request of the Commission, the applicant has provided an undertaking to apply the “In Charge Allowance” under clause 18 of the Agreement as a classification under clause 17 of the Agreement.

Penalties

[7] With respect to clause 13- Overtime and Penalties, and in particular sub clause 13.2(a), the Commission noted that weekend penalties provided under the Agreement are lower in comparison to the Award.

[8] Additionally, the public holiday penalty provided under sub clause 13.2(c) is also lower than the Award.

Undertaking

[9] At the request of the Commission, the applicant has provided an undertaking which states that employees will not be rostered to solely work on a Saturday and a public holiday, and in circumstances where this is necessary, the applicant will ensure that employees will be better off under the Agreement by applying a greater base rate of pay.

[10] The undertaking also provides that when requested, the applicant will provide an employee with a copy of comparative calculations as between the Agreement and the Award, to ensure that employees are better off under the Agreement.

[11] With respect to Sunday penalty loading, the applicant has submitted an undertaking which provides that employees rostered to work on Sundays are entitled to a 100% penalty loading of an employee’s base rate of pay under the Agreement. Casual employees are entitled to the same penalty payment inclusive of casual loading.

Span of hours

[12] With respect to clause 12 - Hours of Work, and in particular sub clause 12.1(c), the Commission noted that the span of hours were greater than the Award.

Undertaking

[13] In response to this concern identified by the Commission, the applicant has provided an undertaking that trading hours are between 7.00am and 9.00pm, which is line with the Award.

[14] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

[15] 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 a substantial change to the Agreement as per s.190(3)(b) of the Act.

[16] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[17] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 12 March 2015. The nominal expiry date of the Agreement is 30 December 2018.

[18] This decision and undertakings are to be brought to the attention of employees by the applicant.

COMMISSIONER

Annexure A

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