Palcove Pty Ltd t/a Cheap as Chips

[2019] FWCA 7255

[2019] FWCA 7255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Palcove Pty Ltd t/a Cheap as Chips
(AG2019/2774)

CHEAP AS CHIPS ENTERPRISE AGREEMENT 2019

Retail industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 21 OCTOBER 2019

Application for approval of the Cheap as Chips Enterprise Agreement 2019.

[1] Palcove Pty Ltd t/a Cheap as Chips has applied for approval of a single enterprise agreement known as the Cheap as Chips Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, concerns were raised about the form of the application, whether the pre-approval requirements were met and the Agreement passes the “better off overall” test. Further information was provided in relation to these concerns. A hearing took place on 21 October 2019.

[3] The Applicant sought to correct errors in the original application, by filing an amended Agreement page and amended statutory declaration. In the circumstances, I am satisfied that these corrections should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a substantial number of casual employees. The Applicant provided further evidence to satisfy the Commission that:

a) all relevant employees, who were employed at the time of the access or voting periods and covered by the Agreement, were requested to vote; and
b) of the employees who were requested to vote, 72 (of 343) casual employees did not work a shift during the access or voting periods, however even if this group had each cast a vote (which is not known) it would have been immaterial to the outcome.

[5] I am satisfied, on the evidence before the Commission, that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission. 1
Noting clause 1.2 of the Agreement, I am also satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] On the basis of the material contained in the amended application, amended Agreement page, further evidence and information provided to the Commission and having regard to the views of the bargaining representatives, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[7] The Shop, Distributive and Allied Employees Association, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[8] The Agreement was approved on 21 October 2019 and, in accordance with s.54, will operate from 28 October 2019. The nominal expiry date of the Agreement is 21 October 2022.

DEPUTY PRESIDENT

 1   See National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

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