Priceline Pty Ltd

[2014] FWCA 1054

[2014] FWCA 1054

FAIR WORK COMMISSION

DECISION

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

Priceline Pty Ltd
(AG2013/12196)

PRICELINE RETAIL EMPLOYEES ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 12 FEBRUARY 2014

Application for approval of the Priceline Retail Employees Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Priceline Retail Employees 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 multi-enterprise agreement.

[2] On 9 January 2014, the Commission wrote to the Applicant 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 coverage of the Agreement, the span of ordinary hours, penalties, the individual flexibility term and the consultation term.

[3] Correspondence was received from the Applicant on 16 January and 10 February 2014. Correspondence was also received from the SDAEA on 6 February 2014.

Span of ordinary hours

[4] In its correspondence to the Applicant and the SDAEA, the Commission noted that the span of ordinary hours contained at clause 12 - Spread of hours, in particular, sub clauses 12.1 and 12.2 was 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] 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.

Penalties

[6] The Commission notes that the Agreement at clause 13 - Penalties, provides for a number of penalties that are less than the Award. In particular, Saturday, Sunday, and evening work penalties for full-time employees and Sunday penalties for casual employees are less than the relevant Award provisions.

[7] The Applicant submits that the rates of pay contained in the Agreement being significantly higher than the Award compensates for the reduced penalty rates. Further, the Applicant provided a number of indicative rosters and calculations to demonstrate that employees are better off overall.

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

Undertakings

Coverage of Agreement

[9] The Commission notes at clause 3 - Parties covered, it states that the Agreement shall cover:

“3.1 Priceline Pty Ltd (ACN 005 968 310) of 250 Camberwell Rd, Camberwell, Victoria, 3124. (the “employer”)

3.2 PPS Group, 757 Canning Street Applecross, WA 6153

PPS 1 Pty Ltd trading as Priceline Booragoon  

PPS 2 Pty Ltd trading as Priceline Bunbury  

PPS 3 Pty Ltd trading as Priceline Freemantle

PPS 4 Pty Ltd trading as Priceline Innaloo

PPS 5 Pty Ltd trading as Priceline Joondalup  

PPS 6 Pty Ltd trading as Priceline Mandurah

PPS 7 Pty Ltd trading as Priceline Midland

PPS 8 Pty Ltd trading as Priceline Morley

PPS 9 Pty Ltd trading as Priceline Rockingham

PPS 10 Pty Ltd trading as Priceline Whitford

PPS 11 Pty Ltd trading as Priceline Riverton”

[10] The Applicant and the SDAEA were asked to provide a breakdown of the votes by the employees for each of the above named companies to ensure that employees of each named employer had approved the Agreement by a majority vote.

[11] On 6 February 2014, the SDAEA provided correspondence to the Commission confirming that the legal name of ‘PPS Group’ was ‘PPS Management Pty Ltd’. Further, the SDAEA provided a breakdown of the votes and submitted that while PPS Management Pty Ltd is a major shareholder of all PPS 1-11 stores listed above, PPS Management Pty Ltd does not have any retail employees that would be covered by the Agreement and as such no employees from PPS Management Pty Ltd voted on the Agreement.

[12] I note that this Agreement is an application for the approval of a multi-enterprise agreement. Pursuant to s.182(2) of the Act, a multi-enterprise agreement is made if the employees of each of the employers that will be covered by the agreement have been asked to approve the agreement under subsection 181(1); and those employees have voted on whether or not to approve the agreement; and a majority of the employees of at least one of those employers who cast a valid vote have approved the agreement.

[13] As PPS Management Pty Ltd do not have retail employees that will be covered by the Agreement and have not participated in the voting process they cannot be named as a party that is covered by the Agreement as per clause 3.

[14] Upon request from the Commission, the Applicant has provided an undertaking that the words ‘PPS Group’ (PPS Management Pty Ltd as it legally named) shall not apply.

[15] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

Individual flexibility term

[16] The Act requires at s.202(1) that an enterprise agreement must include a flexibility term.

[17] The Applicant has declared in its Form F17 - Employer’s declaration in support of approval of an enterprise agreement, that the flexibility term can be found at clause 11 - Request for flexible working arrangements of the Agreement.

[18] In its correspondence the Commission advised the Applicant and the SDAEA that the flexibility term found in the Agreement does not meet the requirements of the Act as out at s.203.

[19] Section 202(4) of the Act states that if an enterprise agreement does not include a flexibility term, the model flexibility term is to be taken to be a term of the agreement.

[20] 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 B.

Consultation term

[21] The Commission advised the Applicant and the SDAEA that the consultation term found at clause 38 of the Agreement was not consistent with the terms that must be included pursuant to s.205(1) of the Act.

[22] 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 for the affected team members to appoint the SDAEA to represent them.

[23] 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 tern is not found in these sections.

[24] 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 C.

[25] I have sought the views of the bargaining representative, in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertakings provided.

[26] The Agreement covers employees employed as retail employees in its retail stores throughout Australia. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[27] 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.

[28] 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.

[29] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 19 February 2014. The nominal expiry date of the Agreement is 1 December 2016.

COMMISSIONER

Annexure A

Annexure B

Annexure C

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