Rydyn Pty Ltd T/A Ryan's Supa IGA Torquay; Northway Super Pty Ltd T/A Ryan's Supa IGA Northway and Others

[2014] FWCA 4946

[2014] FWCA 4946

FAIR WORK COMMISSION

DECISION

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

Rydyn Pty Ltd T/A Ryan's Supa IGA Torquay; Northway Super Pty Ltd T/A Ryan's Supa IGA Northway and Others
(AG2014/6302)

MASTER GROCERS AUSTRALIA LIMITED (RYAN'S IGA) AND SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	PERTH, 23 JULY 2014

Application for approval of the Master Grocers Australia Limited (Ryan's IGA) and Shop, Distributive and Allied Employees' Association Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Master Grocers Australia Limited (Ryan's IGA) and Shop, Distributive and Allied Employees' Association Enterprise Agreement 2014 (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 2 July 2014, the Commission alerted the Applicant’s, via their representative and the Shop, Distributive and Allied Employees’ Association (SDA) being a bargaining representative for the Agreement, to concerns it had with the Agreement. In particular, the concerns related to span of ordinary hours, personal leave, junior rates of pay and the consultation term.

[3] Correspondence was received from the Applicant on 4 and 9 July 2014.

[4] In its correspondence to the Applicant’s, the Commissioner noted that at Schedule C of the Agreement it contains a list of 7 employers that are to be covered by the Agreement.

[5] Pursuant to s.172(2) of the Act it provides that an employer, or 2 or more employers that are single interest employers, may make an enterprise agreement (a single-enterprise agreement). In particular, s.172(5) of the Act states that two or more employers are single interest employers if:

(a) The employers are engaged in a joint venture or common enterprise; or

(b) The employers are related bodies corporate; or

(c) The employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

[6] The Commission requested further information as to how s.172(5) of the Act was met.

[7] On 4 July 2014, the Applicants via their representative advised the Commission that the employers listed in Schedule C of the Agreement are single interest employers engaged in the common enterprise, being the Ryan’s IGA stores and share a common director. Further advice was received on 9 July 2014, in which the Applicants’ representative advised the Commission that the employers listed in Schedule C are related bodies corporate and are single interest employers pursuant to s.172(5)(b) of the Act.

[8] The SDA did not provide any comment in relation to this matter.

[9] Upon review of the correspondence I am satisfied that the employers listed in Schedule C of the Agreement are single interest employers pursuant to s.172(5)(b) of the Act, being related bodies corporate.

Span of ordinary hours

[10] In its correspondence to the Applicants the Commission noted that clause 17 - Hours of work and rosters, and in particular, sub clause 17.1 of the Agreement provides for a span of ordinary hours greater than the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test provides for the following span of ordinary hours.

[11] In its correspondence to the Commission, the Applicants state that they rely upon the provision under the Award at sub clause 27.2(b)(iii), that provides in the case of retailers whose trading hours extend beyond 9.00pm Monday to Friday or 6.00pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00pm.

[12] Further, the Applicants submit that a higher rate of pay compensates for any work performed outside of the ordinary hours when compared to the Award. The Applicants have provided a number of indicative rosters and calculations to demonstrate this.

Undertakings

Personal leave

[13] An undertaking with respect to clause 22 - Sick leave, and in particular, the accrual of personal leave in accordance with the National Employment Standards has been provided by the Applicants.

Junior rates of pay

[14] In its correspondence, the Commission noted that with respect to clause 11.2 - Wages, and in particular, sub clause 11.2.2, the percentage for junior employees aged 17 and 18 years of age is less than the percentage under the Award.

[15] The Applicants have provided an undertaking that an employee who is aged 17 years will be paid 60% of the adult rate and an employee who is aged 18 years will be paid 70% of the adult rate.

[16] Upon review of the correspondence and undertakings I am satisfied the Agreement meets the better off overall test.

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

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

[19] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in substantial change to the Agreement as per s.190(3)(b) of the Act.

Consultation term

[20] The Commission advised the Applicants and the SDA that the consultation term found at clause 9 - Introduction of change and redundancy, and in particular, sub clause 9.1 of the Agreement was not consistent with the terms that must be included pursuant to s.205(1) of the Act.

[21] 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 that the Applicants will discuss significant operational change with the employees and the Union. The consultation term in the Agreement does not expressly include a term that allows for the representation of the employees.

[22] 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 term is not found in these sections.

[23] 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 B.

[24] The Agreement covers employees of the employers listed in Schedule C in those classifications specified in the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being geographically or organisationally distinct.

[25] 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.

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

[27] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 30 July 2014. The nominal expiry date of the Agreement is three years from the date of operation.

COMMISSIONER

Annexure A

Annexure B

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