Palcove Pty Ltd T/A Cheap as Chips

[2014] FWCA 1813

[2014] FWCA 1813

FAIR WORK COMMISSION

DECISION

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

Palcove Pty Ltd T/A Cheap as Chips
(AG2013/12211)

CHEAP AS CHIPS (RETAIL SA / BROKEN HILL STAFF) ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 18 MARCH 2014

Application for approval of the Cheap as Chips (Retail SA / Broken Hill Staff) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Cheap as Chips (Retail SA / Broken Hill Staff) Enterprise 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 9 January 2014, the Commission wrote to the Applicant via its legal representative and the Shop, Distributive and Allied Employees Association (SDAEA) being a bargaining representative for the Agreement with respect to concerns it had with the Agreement. In particular, the concerns related to the meal allowance, casual loading, penalties and the ordinary span of hours in the Agreement.

[3] Correspondence was received from the Applicant in relation to the issues raised by the Commission on 20 January 2014 and 14 March 2014.

Undertakings

Meal allowance

[4] With respect to clause 5.8 - Meal allowance, of the Agreement, the Commission noted in its correspondence to the Applicant and the SDAEA that the Agreement provides for a meal allowance from 1 October 2013 of $8.39. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test at clause 20.1(a) provides for a meal allowance of $16.67 and furthermore, where overtime work exceeds four hours a further meal allowances of $15.09 will be paid.

[5] An undertaking has been provided by the Applicant that it will apply the provisions of clause 20.1 of the Award, in lieu of clause 5.8 of the Agreement.

Other matters

[6] In its correspondence to the Applicant and the SDAEA, the Commission noted a number of concerns it had with other aspects of the Agreement. In particular, the concerns related to:

● Casual loading: In supporting documentation that was lodged with the application, the document titled ‘Proposed Cheap as Chips (Retail SA / Broken Hill) Staff Enterprise Agreement 2013 Summary Document’, prepared by the SDAEA stated that the casual loading will be set at 20% of the base rate for all non-probationary employees. The Award provides for a 25% loading with respect to casual employees.

● Penalties: The penalty rates provided at clause 5.3 of the Agreement, in particular, Sundays (up to and including 38 hours), casuals and public holiday penalties are less than the relevant penalties provided for under the Award.

● Ordinary span of hours: the ordinary hours of work provided for at clause 6.1 – Hours of work/Overtime, in particular, sub clause 6.1.2 are greater than the spread of hours provided for under the Award.

[7] The Commission requested the Applicant to provide correspondence outlining how employees are better off overall despite these concerns. In particular, the Applicant was asked to provide indicative rosters and calculations to demonstrate this.

[8] Correspondence was received from the Applicant on 20 January 2014. The Applicant provided a number of undertakings in relation to the concerns raised by the Commission and provided indicative rosters and calculations.

[9] On 28 January 2014, the SDAEA advised the Commission that it had reviewed the proposed undertakings and supported the approval of the Agreement with the undertakings that had been provided.

[10] Upon review of the undertakings, indicative rosters and calculations by the Commission it advised the Applicant and the SDAEA that based on modelling undertaken by the Commission a number of permanent employees and casual employees under 16 years of age would not be better off overall under the Agreement.

[11] Despite modelling undertaken by the Commission that demonstrated employees who work at Broken Hill and are engaged at classification Levels 1 and 2 under the Agreement would not be better off under the Agreement, the Applicant has advised the Commission that the minimum level of classification for employees who are based in Broken Hill is Level 3.

[12] On 14 March 2014, the Applicant provided a number of revised undertakings and calculations.

[13] With respect to casual employees, the Applicant has provided an undertaking that casual employees engaged at Level 1 and Level 2 who are under 16 years old will be paid the rates contained in the Award.

[14] With respect to permanent employees, the Applicant has provided a number of revised undertakings and calculations. Upon review of these undertakings and calculations I am satisfied that permanent employees will be better off overall under this Agreement.

[15] The Applicant has also provided an undertaking that it will review the work pattern and pay records of its employees employed under the Agreement, to ensure that they are better off overall when compared to the same work pattern under the Award, and if not, will make up that difference.

[16] Upon review of the revised undertakings and calculations, I am satisfied that employees will be better off overall under this Agreement.

[17] No response was received from the SDAEA in relation to the revised undertakings.

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

[19] The Applicant should make known to its employees this decision and the undertakings it has provided to enable this Agreement to be approved.

[20] The Agreement covers employees of the employer who are based in South Australia and Broken Hill. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[21] 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.

[22] The SDAEA 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.

[23] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 25 March 2014. The nominal expiry date of the Agreement is 30 September 2017.

COMMISSIONER

Annexure A

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