Prouds Jewellers Pty Ltd T/A Prouds Jewellers Pty Ltd

[2020] FWCA 2589

[2020] FWCA 2589

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Prouds Jewellers Pty Ltd T/A Prouds Jewellers Pty Ltd
(AG2019/1633)

PROUDS RETAIL EMPLOYEES ENTERPRISE AGREEMENT 2019

Retail industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 18 MAY 2020

Application for approval of the Prouds Retail Employees Enterprise Agreement 2019.

[1] Prouds Jewellers Pty Ltd (Prouds) has made an application for approval of an enterprise agreement known as the Prouds Retail Employees Enterprise Agreement 2019 (Agreement) pursuant to s 185 of the Fair Work Act 2009 (Act). The Agreement is a single-enterprise agreement.

[2] An interim decision was issued in relation to the application on 8 May 2020 1 (Interim Decision) which dealt with concerns held by the Commission and objections to approval of the Agreement by the Shop, Distributive and Allied Employees’ Association (SDA).

[3] The Commission identified in the Interim Decision residual concerns it held in relation to:

(i) The Agreement does not provide for a recall allowance. Clause 20.10 of the General Retail Industry Award 2010 (GRIA) deals with recall allowance. One of Prouds’ proposed undertakings referred to as Undertaking 13 in the Interim Decision addressed the entitlement in clause 20.10(a) of the GRIA but did not adopt the basis of calculation for time worked provided in clause 20.10(b) of the GRIA. Accordingly, should the undertaking have been accepted, the Agreement would provide that employees recalled to work would be paid only for the actual time worked once recalled; 2 and

(ii) The Agreement is silent as to the adjustment of expense-related allowances. Prouds’ proposed undertakings referred to in the Interim Decision included an undertaking in relation to adjustment of meal allowance and transport allowance. However, should those undertakings have been accepted, they would not apply to all expense-related allowances that may be adjusted under the GRIA. 3

(Residual Concerns)

[4] Prouds was afforded an opportunity to address the Residual Concerns which they did by the provision of revised undertakings on 12 May 2020 (Revised Undertakings). The SDA was provided with a further two days to comment on the Revised Undertakings. No comment was provided by the SDA.

[5] The Revised Undertakings amended the wording of Undertaking 13 to:

“An employee who is recalled to work before or after completing their normal roster or on a day on which they did not work will be paid for all hours worked, which includes all time spent travelling between their home and work, with a minimum of 3 hours at the appropriate rate.”

[6] The Revised Undertakings also added an additional undertaking which provides:

“Prouds will ensure that all allowances under the Agreement are at least equal to the amount that an employee would be entitled to under the Award for those allowances.”

[7] I am satisfied that the Revised Undertakings resolve the Residual Concerns.

[8] Prouds has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[9] Subject to the undertakings referred to above, and on the basis of the material contained in the application, the accompanying statutory declaration, the additional information provided by Prouds and having heard from the parties, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[10] The SDA, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[11] The Agreement was approved on 18 May 2020 and, in accordance with s 54, will operate from 25 May 2020. The nominal expiry date of the Agreement is 18 May 2024.

DEPUTY PRESIDENT

Annexure A

 1   [2020] FWC 2424

 2   Ibid at [18-19]

 3   Ibid at [47-49]

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