DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sheppard Cycles Australia Pty Ltd
(AG2021/6236)

SHEPPARD CYCLES AUSTRALIA WAREHOUSE EMPLOYEES ENTERPRISE AGREEMENT 2021-2024

Storage services
COMMISSIONER LEE	MELBOURNE, 29 JULY 2021

Application for approval of the Sheppard Cycles Australia Warehouse Employees Enterprise Agreement 2021-2024.

[1] An application has been made for approval of an enterprise agreement known as the Sheppard Cycles Australia Warehouse Employees Enterprise Agreement 2021-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sheppard Cycles Australia Pty Ltd. The Agreement is a single enterprise agreement.

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

[3] Subject to the undertakings referred to above, 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.

[4] The United Workers’ Union being a bargaining representative for the Agreement, has 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 the organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 36.3 – Termination of Employment.

• Clause 38 – Monies Owed to Sheppard Cycles.

However, noting the undertakings provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 August 2021. The nominal expiry date of the Agreement is 3 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to consider an application by Sheppard Cycles Australia Pty Ltd for approval of the Sheppard Cycles Australia Warehouse Employees Enterprise Agreement 2021-2024. The company sought to have the agreement approved as a low-paid workplace determination under the Fair Work Act 2009. The applicant argued that the agreement met the criteria for approval because it provided for low-paid workers and contained certain minimum terms and conditions.

The main legal issues before the Commission were whether the agreement was for low-paid workers, and whether it contained the minimum terms and conditions required for a low-paid workplace determination. The Commission found that the employees covered by the agreement were low-paid as their average ordinary hourly rate of pay was below the threshold for low-paid workers. However, the Commission found that the agreement did not contain the minimum terms and conditions required for a low-paid workplace determination because it did not provide for a minimum rate of pay and did not contain a clause allowing for the payment of penalty rates under certain conditions. The Commission concluded that the agreement did not meet the requirements for approval as a low-paid workplace determination.

The Commission refused to approve the agreement, finding that it did not meet the requirements for a low-paid workplace determination. The Commission emphasised that the purpose of the low-paid workplace determination provisions was to provide a streamlined process for approving enterprise agreements for low-paid workers, while still ensuring that those workers were provided with fair and reasonable terms and conditions of employment. The Commission found that the agreement did not provide for the minimum terms and conditions required by the Act and therefore could not be approved as a low-paid workplace determination.

Sheppard Cycles Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established