Optus Retailco Pty Ltd

[2013] FWCA 8757

[2013] FWCA 8757

The attached document replaces the document previously issued with the above code on 7 November 2013.

To correct a typographical error at paragraph 13 of the decision.

Alyce Bowe

Associate to Commissioner Bull.

8 November 2013

[2013] FWCA 8757

FAIR WORK COMMISSION

DECISION

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

Optus Retailco Pty Ltd
(AG2013/9522)

OPTUS RETAIL AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 7 NOVEMBER 2013

Application for approval of the Optus Retail Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Optus Retail 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 17 October 2013, the Commission alerted the Applicant via its representative to a number of concerns it had with aspects of the Agreement. These issues concerned the ordinary hours of work, penalties with respect to work on weekends and public holidays, allowances and the dispute settlement procedure under the Agreement.

[3] Correspondence was received from the Applicant on 28 and 31 October 2013.

[4] The Applicant submits that the Commission’s concerns with respect to the ordinary span of hours, penalties and allowances is resolved by the wording included at page 5 of the Agreement under the heading “How does this Agreement work?”, and in particular where the clause states:

“In addition, on an annual basis, your total remuneration (including your Base Salary; and any penalties, loadings, overtime and amounts awarded to you under the Optus Retail Incentive Plan) will be no less than the amounts you would have received under the General Retail Industry Award 2010 including weekend, public holidays and working late at night”

Undertakings

Ordinary hours of work, penalties and allowances

[5] The Commission notes that the Agreement at Part 4 - My hours of work, 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.

[6] Further, the Agreement provides penalties on weekends and public holidays that are less than the penalties provided for under the Award and with respect to leave loading and laundry allowance, the Commission notes that these are both absorbed into the hourly rates of pay under the Agreement.

[7] The Applicant has provided a number of indicative rosters and calculations to demonstrate that employees covered under the Agreement would be better off overall and has advised that the rates of pay in the Agreement are significantly higher, and compensate for these lesser entitlements.

[8] The Applicant has also provided an undertaking that applies to employees who work in a store with trading hours that extend beyond 10:00pm Monday to Friday, or 6:00pm on a Saturday or Sunday. The undertaking provides that every 6 months and on termination of an employee’s employment, the Applicant will conduct a review of the remuneration received by the employee under the Agreement in comparison to what the employee would have received if they had been paid in accordance with the Award.

Dispute settlement procedure

[9] An undertaking with respect to Part 7 - Individual flexibility, consultation and dispute resolution, and in particular, “How are issues resolved under this Agreement?” that an employee may appoint a representative, has been provided by the Applicant.

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

[11] The Agreement covers all employees of Optus Retail who principally perform work in Optus 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 Agreement is approved. In accordance with s.54(1)(b) the Agreement will operate from the start of the third full pay period from the date of this approval. The nominal expiry date of the Agreement is three years from the date of operation.

COMMISSIONER

Annexure A

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