Sanreef Pty Ltd and Piccones Fresh Pty Ltd T/A Piccones Super IGA

[2016] FWCA 1033

[2016] FWCA 1033 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sanreef Pty Ltd and Piccones Fresh Pty Ltd T/A Piccones Super IGA
(AG2015/7811)

PICCONES SUPA IGA ENTERPRISE AGREEMENT 2015

Retail industry
DEPUTY PRESIDENT BULL	SYDNEY, 2 MARCH 2016

Application for approval of the Piccones Supa IGA Enterprise Agreement 2015

[1] An application has been made by Sanreef Pty Ltd and Piccones Fresh Pty Ltd T/A Piccones Super IGA (the applicant) for the approval of an enterprise agreement known as the Piccones Supa IGA Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

[2] The Agreement covers all employees engaged by the employers. As per s.186(3) of the Act, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[3] The Commission noted that the application is for a single enterprise agreement, and that the application lists 2 employers who are to be covered by the Agreement.

[4] Pursuant to s.172(2) of the Act, the Commission requested the applicant address how 2 employers may make a single enterprise agreement, and in particular, how the applicant would satisfy the single interest employer test under s.172(5) of the Act.

[5] The applicant submits that the employers to be covered under the Agreement are
operating in accordance with the definition of a ‘single interest employer’ as defined under s.172(5)(a) of the Act, being “employers engaged in a joint venture or common enterprise”.

[6] A “common enterprise” was defined by Mason J in Australian Softwood Forests Pty Ltd v Attorney General-General (NSW); Ex re Corporate Affairs Commission (1981) 148 CLR 121, 133 (Australian Softwood):

“An enterprise may be described as common if it consists of two or more closely connected operations on the footing that one part is to be carried out by A and the other by B, each deriving a separate profit from what he does, even though there is no pooling or sharing of receipts of profits. It will be enough that the two operations constituting the enterprise contribute to the overall purpose that unites them. There is then an enterprise common to both participants and, accordingly, a common enterprise.”

[7] In this application, the applicants submit that the employers have common operation and staffing of the Piccones Supa IGA stores.

[8] I am satisfied that the applicants are engaged in a common enterprise for the purposes of meeting the requirements under s.172(5) of the Act, as per the decision in Australian Softwood.

[9] The General Retail Industry Award 2010 and the Meat Industry Award 2010 (the Awards) are the relevant reference instruments for the purposes of the better off overall test (BOOT) as required under s.186 of the Act.

[10] The hourly rates of pay under the Agreement are higher than the corresponding minimum rates of pay under the Awards, being:

● 8.50%–8.52% higher for retail employees; and
● 8.50%–10.93% higher for meat employees.

[11] On 9 February 2016, the Commission wrote to the applicant with respect to concerns about the provisions of clause 3.8 – Penalty Rates, and clause 4.1.2 – Hours of Work – Part-time Employees, of the Agreement.

Penalty Rates

[12] The Awards provide for employees to be paid penalty loadings for ordinary hours worked on weekends and early mornings and evenings. The Retail Award provides 125% for ordinary work after 6pm during Monday to Friday and ordinary work on Saturday. The Meat Award provides 115% for ordinary shifts commencing at or after 2pm and finishing at or before midnight Monday to Friday and 125% for ordinary work between 4am and 6pm Saturday.

[13] Clause 3.8 of the Agreement provides a Sunday penalty of 150% for ordinary work performed during the hours of 5am and midnight however ordinary work performed during these hours Monday to Saturday, other than a public holiday, do not attract a penalty. The Agreement also provides a penalty of 150% for ordinary hours worked on any day between midnight and 5am with 200% for these hours on a Sunday. The public holiday penalty is 250% which matches the penalty offered under the Awards. Ordinary hours may be worked any day of the week under the Agreement.

Hours of Work – Part-time Employees

[14] Under the Awards, part-time employees have a regular pattern of work and reasonably predictable ordinary hours which may be changed by written agreement. Part-time employees are entitled to overtime payments for work in excess of the agreed hours.

[15] Clause 4.1.2 of the Agreement provides that part-time employees’ hours may be extended or decreased by the employer without incurring overtime payments, in order to meet unexpected fluctuations in business.

Undertaking requested and provided by the applicant

[16] The applicant was requested to address the Commission on how the Agreement satisfied the BOOT given the concerns raised above.

[17] On 12 February 2016, the applicant provided undertakings as follows:

● employees who work their ordinary hours during early mornings and evenings will be paid at 125%; and
● part-time employees will have predictable and agreed hours of work and where an employee exceeds that agreement without the employee’s consent, then the employee shall be paid overtime rates.

[18] The undertakings are taken to be a term of the Agreement and are attached at Annexure A of this decision.

Conclusion

[19] Taking into account the higher rates of pay under the Agreement and the undertakings provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement.

[20] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[21] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 9 March 2016. The nominal expiry date of the Agreement is 1 December 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE417862  PR577121>