Skyvault Pty Ltd
[2010] FWA 5267
•16 JULY 2010
[2010] FWA 5267 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Skyvault Pty Ltd
(AG2010/8533)
Retail industry | |
COMMISSIONER WILLIAMS | PERTH, 16 JULY 2010 |
Skyvault Staff Agreement 2010.
[1] Skyvault Pty Ltd (the Applicant) has applied for the approval of the Skyvault Staff Agreement 2010 (the Agreement)pursuant to s.185 of the Fair Work Act 2009 (the Act).
[2] Having considered the detail of the Agreement there are a number of provisions within it that appear to provide conditions that are less favourable than the General Retail Industry Award 2010 (the Award) which the Applicant has advised is the relevant reference instrument for the purposes of the better off overall test.
[3] Examples of these deficiencies are detailed below.
[4] Clause 10.2.6 provides for rostering part-time employees for as little as one hour per occasion on not more than six occasions per year which is at odds with the minimum engagement for part-time employees of three hours in Clause 12.5 of the Award.
[5] Clause 10.2.6 and 10.4 of the Agreement allow for unilateral changes to a part-time employees rostered hours and so disadvantages such part-time employees compared to the requirements of Clause 12.8 Rosters of the Award.
[6] The minimum periods of engagement provided for casuals in Clause 10.5.6 (a) and (b) of two hours and one hour respectively are less than the minimum daily engagement of three hours for casual employees in Clause 13.4 of the Award.
[7] Clause 10.2.5 provides that employees can work not more than 10 ordinary hours on any day or shift which is at odds with the Award provision at clause 26.3 which provides employees may be rostered to work up to a maximum of nine ordinary hours on any day provided that for one day per week an employee can be rostered for 11 hours.
[8] Clause 10.3 Additional Hours - Part-Time Employees appears to in some circumstances involve working extra hours at ordinary time rates that would under the Award have attracted overtime penalties.
[9] The rest breaks provided for in Clause 13 of the Agreement are allowed somewhat later than the rest breaks provided for in the Award at Clause 30.1.
[10] The Agreement contains no provision that is comparable to the reasonable overtime Clause 28.1 of the Award.
[11] Work on a Sunday according to Clause 17.8 of the Agreement is to be paid at double time and a half however the rates for public holidays payable under Schedule A of the Agreement do not equate to this amount, leaving this unclear.
[12] The Applicants declaration sworn in support of the application states in answer to question 3.5 that the Agreement does not contain any terms or conditions that are more beneficial than the equivalent terms in the reference instrument. Whilst this generally appears to be correct I note that the overtime rate in the Agreement Clause 12.2 is time and half for the first two hours and double time thereafter whereas the Award is time and half for the first three hours and double time thereafter.
[13] Considering all the issues above on balance I am not satisfied that the terms of the Agreement will mean that employees will be better of overall compared to working under the terms of the reference instrument.
[14] Separately Clause 8.3 unfair dismissals of the Agreement appears to be an unlawful term as defined in section 194 (c) of the Act which is a barrier to approval of the Agreement (see section 186 (4)).
[15] I have considered whether to seek written undertakings from the employer as is provided for under s 190 of the Act. Assuming the employer was willing to provide undertakings and the other requirements in s190(3)(a) and s.190(4) and (5) were satisfied in my view the changes to the agreement required to meet the concerns identified would be material ones and would be considerable in number. Accepting such undertakings to cure the deficiencies in the agreement would be likely to result in substantial changes to the agreement and consequently because of the requirement of s. 190(3)(b) this option is excluded.
[16] Consequently the Agreement does not meet the requirements of s. 186 and so cannot be approved. The application is dismissed.
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