Shop, Distributive and Allied Employees Association v Franklins Pty Ltd

[2011] FWA 5719

[2011] FWA 5719

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.170LW - pre-reform Act - Application for settlement of dispute (certified agreement)

Shop, Distributive and Allied Employees Association
v
Franklins Pty Ltd
(C2011/5533)

Retail industry
COMMISSIONER RAFFAELLI	SYDNEY, 24 AUGUST 2011

Dispute re provisions of the Franklins National Retail Enterprise Agreement 2008.

[1] On 24 August 2011 I dealt with a dispute lodged by the Shop Distributive and Allied Employees Association (the SDA) in respect of the Franklins National Retail Enterprise Agreement 2008 [AE842237 (PR962095)] (the Agreement). I had previously dealt with the dispute between the SDA and Franklins Pty Ltd.

[2] The dispute is concerned with the application of certain provision within the Agreement. Pursuant to clause 1.7 and the operation of the former Workplace Relations Act 1996 and the Fair Work (Transitional Provisions and Consequential Amendments ) Act 2009, I am able to deal with and determine the matter.

[3] On the basis of what is before me, I have determined that the Agreement should operate in the following manner:

Determination

1. From 5 September 2011 the ordinary rates of pay (as defined in clause 1.2(h)) for permanent Team Members are set out below along with casual rates of pay (including the 20% casual loading) for Team Members:

Grade	Age	Full time	Part Time Hourly	Casual
Grade 1 (97.50%)	20yrs +	$683.60	$17.9895	$21.5874
19 yrs	$546.90	$14.3921	$17.2705
18 yrs	$461.40	$12.1421	$14.5705
17 yrs	$376.00	$9.8947	$11.8737
16 yrs	$341.80	$8.9947	$10.7937
< 16 yrs	$307.60	$8.0947	$9.7137
Grade 2 (100%)	20yrs +	$701.10	$18.4500	$22.1395
19 yrs	$560.90	$14.7610	$17.7132
18 yrs	$473.20	$12.4526	$14.9454
17 yrs	$385.60	$10.1474	$12.1774
16 yrs	$350.60	$9.2263	$11.0716
< 16 yrs	$315.50	$8.3026	$9.9625
Grade 3 (101.50%)	20yrs +	$711.60	$18.7263	$22.4716
19 yrs	$569.30	$14.9816	$17.9779
18 yrs	$480.30	$12.6395	$15.1674
17 yrs	$391.40	$10.3000	$12.3600
16 yrs	$355.80	$9.3632	$11.2358
< 16 yrs	$320.20	$8.4263	$10.1116
Grade 4 (105%)	$736.20	$19.3737	$23.2484
Grade 5 (110%)	$771.20	$20.2947	$24.3537
Butcher	$763.20	$20.0842	$24.1011
Apprentices Butchers
50%	1st Year	$381.60	$9.1553	$10.0421
65%	2nd Year	$496.10	$12.8237	$13.0553
85%	3rd Year	$648.70	$16.7684	$17.0711
95%	4th Year	$725.00	$18.7421	$19.0789

2. Franklins accepts the non-inclusion of a laundry allowance in the Enterprise Agreement in clause 7.3 was predicated on Franklins supplying, and continuing to supply uniforms to Team Members. If this position was, for whatever reason altered in the future, Franklins accepts that it will reincorporate a laundry allowance back into the Enterprise Agreement.

3. Franklins will work co-operatively with the SDA in an endeavor to facilitate free and safe car parking for Team Members who drive to work. This will include discussing parking issues that impact Team Members with Centre Management and Councils, as they arise.

Franklins will use its best endeavors to secure free parking for Team Members as part of lease negotiations.

4. Where an issue concerning violence or security in the workplace is raised by the SDA, Franklins in consultation with the SDA will promptly conduct an agreed risk assessment to identify, assess and control such risks and implement appropriate control measures that are consistent with current State or Territory legislative requirements.

5. When a store is to be renovated Franklins will inform the SDA prior to the commencement of the renovation.

6. Team Members, whilst working on registers, may have access to an enclosed bottle of water for personal consumption.

7. With prior arrangement with Franklins an SDA Delegate may be released without pay from their employment duties for up to 38 hours per calendar year to participate in activities associated with membership recruitment.

Franklins may refuse to grant unpaid SDA Leave if it would negatively impact on the operation of the business. Franklins will not unreasonably refuse requests for such leave.

Leave granted pursuant to this clause will count as service for all purposes of this Agreement.

8. SDA Membership

(a) Franklins recognises the SDA as being the Union that will have representation of all Team Members covered by this Enterprise Agreement and Franklins strongly recommends that all Team Members covered by this Enterprise Agreement join the SDA.

(b) Franklins will assist SDA recruitment of eligible Team Members by:

(i) Informing all eligible Team Members at the point of recruitment that Franklins strongly recommends that all Team Members covered by this Enterprise Agreement join the SDA.

(ii) Ensuring that all eligible Team Members are provided an SDA membership application form at the point of induction and any other literature authorised and supplied by the SDA.

(iii) Upon authorisation, deduct membership fees from a Team Member's wages. Fees collected will be forwarded to the respective branch of the SDA during the subsequent month for which they were collected, together with all necessary information to enable the reconciliation and crediting of subscriptions to members' accounts.

(c) This Enterprise Agreement does not purport, either directly or indirectly, to compel or require a Team Member to join a union or in any way discriminate against or disadvantage a Team Member because the Team Member is or is not a member of the union.

9. SDA Meetings

(a) The SDA will be entitled to convene up to 2 paid meetings of 15 minutes duration, in which the SDA has access to all Team Members, in each calendar year at each store.

(b) There will be at least 48 hours notice given to a Store Manager prior to the holding of an SDA meeting. A meeting cannot be held until the Store Manager agrees to a time and a date for the meeting. Such requests will not be unreasonably refused.

(c) SDA meetings must not unduly interfere or disrupt the performance of work.

(d) Franklins will make available all reasonable facilities and a place for the holding of SDA Meetings.

(e) The Store Manager will ensure that the maximum numbers of Team Members who wish to attend are given the opportunity to attend SDA Meetings.

10. SDA Noticeboard

(a) Franklins will permit the use of an SDA Noticeboard of adequate size, in a prominent position to be decided by Franklins in each store, upon which the SDA will be permitted to post formal SDA notices.

(b) The relevant Branch Secretary must forward any formal SDA notices that are to be placed on the SDA Noticeboard to the Franklins Human Resources Department at the same time the SDA notices are forwarded to the SDA Delegates.

(c) Either party may remove any notice posted on the SDA Noticeboard that is not a formal notice or has not been referred to the Franklins Human Resources Department.

11. SDA Store Visits

(a) The SDA will be provided with reasonable access to all Franklins stores.

(b) SDA Store Visits must not interfere with the work and operations of any Franklins store.

(c) The SDA will ensure that any discussions with Team Members are held in non-service areas.

(d) The purpose of SDA visits will include:

a Speaking to Team Members. Discussions with Team Members will not be conducted in a manner that interferes with them carrying out their duties;

b Speaking to management; and

c Ensuring the observance of the Enterprise Agreement. This may include, within a reasonable time frame, the inspection of work and time and wages books or documents relevant to such purpose.

(e) To assist communication facilitation and the resolution of issues, an SDA official will, where possible, contact store management and inform them of a planned store visit. If practical, this should be done on the day prior to the planned visit. If this is not possible, upon arriving at the Franklins store the SDA official will notify store management, of the general intent and estimated length of the visit prior to any discussions with the Team Member.

(f) Prior to departure the SDA will notify the person in charge of the store of any concerns or issues with the intent of seeking a satisfactory solution in accordance with the Enterprise Agreement's Grievance Procedure. Provided that Franklins will respect a Team Member's right to raise a matter with the SDA on a private and confidential basis, without that matter being actioned under the Enterprise Agreement's Grievance Procedure.

12. SDA Delegates

(a) Franklins will recognise up to 3 SDA Delegates per store but in large stores or those that operate long or extended trading hours Franklins will recognise up to 5 SDA Delegates.

(b) The SDA is to advise the relevant Franklins Store Manager of the store's recognised SDA Delegates and of any changes that are made to the recognised SDA Delegates. Franklins are not required to recognise any Team Member as an SDA Delegate unless properly notified.

(c) An SDA Delegate is a Team Member elected or appointed by the SDA to act in this capacity. An SDA Delegate will:

• Be able to discuss work related matters of concern to a Team Member or to convey information relating to the workplace to Team Members;

• Be entitled to spend up to 30 minutes per month, or more if a genuine issue arises, to discuss matters with authorised SDA officials;

• Represent the interests of a fellow Team Member in a grievance or dispute with Franklins in accordance with the Grievance Procedure;

• Have reasonable access to a Franklins telephone to conduct SDA business;

• Place authorised SDA notices on the SDA Noticeboards in accordance with the SDA Noticeboard clause; and

• Be given a secure location in which to store their SDA material.

(d) Whilst engaged on genuine SDA business the SDA Delegate must not unduly interfere with normal work.

(e) If an SDA Delegate needs to take time off work to attend to SDA business they must firstly notify store management of the requirement and advise Franklins the nature of the SDA business they need to attend to.

(f) Franklins will introduce to the SDA Delegate all new Team Members as part of the workplace orientation or induction process. Franklins will give the SDA Delegate one days notice where possible.

13. SDA Training Leave

(a) Franklins will grant 6 days paid SDA Training Leave per store per calendar year for the purpose of allowing recognised SDA Delegates to attend approved SDA training courses.

(b) The SDA Delegate must provide their Franklins Store Manager with at least 4 weeks notice of any SDA training courses they wish to attend. Franklins may seek deferral of attendance of an SDA Delegate because of extraordinary circumstances, if the SDA Delegate has not provided at least 4 weeks notice or if the courses are planned in the 3 weeks either side of Christmas and the week either side of Easter.

(c) Franklins will be entitled to be satisfied that the training course has been approved by the SDA.

(d) A Team Member on authorised SDA Training Leave will receive payment in accordance with the roster they would have worked but for the period of absence, whilst attending an SDA training course.

14. Franklins will attach a copy of this determination to copies of the Franklins National Retail Agreement 2008 that are posted in their stores and to any further copies of the Enterprise Agreement that they circulate.

[4] That the above determination shall take effect on and from 25 August 2011.

COMMISSIONER

Appearances:

R. Clarke and B. McGrath for Franklins

B. Smith for the Shop, Distributive and Allied Employees Association.

Hearing details:

2011

Sydney:

August 24.

Printed by authority of the Commonwealth Government Printer

<Price code C, AG842237  PR513815>