Super Retail Group Limited
[2024] FWCA 1618
•2 MAY 2024
| [2024] FWCA 1618 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Super Retail Group Limited
(AG2024/952)
SUPER RETAIL GROUP RETAIL & CCC ENTERPRISE AGREEMENT 2024
| Retail industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY, 2 MAY 2024 |
Application for approval of the Super Retail Group Retail & CCC Enterprise Agreement 2024
An application has been made for approval of an enterprise agreement known as the Super Retail Group Retail & CCC Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Super Retail Group Limited. The Agreement is a single enterprise agreement. If the Commission is satisfied that the requirements in sections 186 and 187 of the Act are met it must approve the Agreement.
Section 186(2)(c) requires the Commission to be satisfied that the agreement does not contravene s.55 relating to the interaction between the National Employment Standards (NES) and enterprise agreements. A concern was raised that the Agreement does not define a shiftworker for the purposes of the extra week of annual leave provided for in the NES (see s.187(4) and s.196 of the Act). In response the Applicant provided an undertaking that defines for the purpose of the NES a shiftworker to be an employee who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week.
A further concern was raised in respect of clause 136 which provides for the circumstances where the employer is entitled to withhold an amount from an employee’s final payment upon termination. Clause 136 does not appear to limit the source of monies which may be deducted which may operate in a manner contrary to an employee’s entitlement to payment of NES entitlements upon termination. In response the Applicant provided an undertaking to amend clause 136 to reflect the limitation that wages for the period of no more than one week may be withheld, and only if the employee is agreed 18 years or older. This reflects an award standard which is otherwise permitted by the NES.
Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award. Here the relevant awards are the Clerks – Private Sector Award (Clerks Award) and General Retail Industry Award (GRIA). In applying the test, the Commission is required by s.193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Awards and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application.
In this matter concerns were raised with the Applicant that various terms in the Agreement could be less beneficial depending on the patterns or kinds of work, or types of employment, applying at the workplace. In respect to rates of pay, a concern was raised that GRIA Level 4 classification employees who are 19 years old and younger may not be better off overall under the Agreement. In response the Applicant provided an undertaking that an updated Appendix A sets out revised rates for junior team members who are working at a GRIA Level 4 classification by undertaking higher duties.
Clarity was sought as to the correct classification matching adopted by the Applicant for the Shift Supervisor / GRIA Level 4 classification with the classification in the Award to assess whether the rates of pay might fall below Award rates. In response the Applicant indicated that the rates of pay at clause 305 of the Agreement relating to duties at Award Level 4 is applicable to team members acting above a shift supervisor function in a Higher Duties arrangement as set out at clause 267. The Applicant clarified that the use of “Higher duties for a Supervisor / Shift Supervisor – GRIA Retail Employee Level 3” is an extension of terms for classifications at clause 251. The Applicant said employees’ wages should be mapped to a level 4 GRIA (second-level manager) for periods no greater than 12 weeks, typically for coaching purposes and/or covering leave of the appointed second-level manager. Team members remain covered by the enterprise agreement as their substantive and ongoing role remains unchanged. The ordinary hours rate provided under clause 305 exceed GRIA ordinary hours rates by 11%. The Applicant further indicated that the application of junior rates to GRIA level 4 is not permitted and the impact this creates regarding a junior rate for clause 305. The Applicant provided a commitment to applying “at 20 years” / adult rates for any team member engaged in the position.
Further concerns were raised in relation the Agreement appearing to be silent on a number of safeguards for part time employees which are provided for in both the Clerks and Retail Awards and whether these deficiencies may result in financial and non-financial detriment. As to the safeguard pertaining to reasonably predictable hours of work, provided for at clause 10.1 in both of the Awards, the Applicant submits that clause 37 of the Agreement by implication provides reasonably predictable hours of work. A second concern was raised about whether the Agreement being silent as to the safeguard provided for at clause 10.2 of the Clerks Award and 10.5 of the GRIA may result in any disadvantage to employees. These provisions in the Awards provide that hours of work are to be agreed in advance, in writing, at the commencement of an employee’s engagement, and specifying the number of hours worked each day, the days of the week the employee will work, and the shift times. The Applicant submits when clauses 35 and 37 of the Agreement are read together with current onboarding and rostering practices it is the case that sufficient safeguards are in place to ensure that part time employees do agree to their hours of work upfront.
A further concern was raised in respect to whether the Agreement being silent as to the part time employees’ safeguard provided for at clause 10.3 - 10.4 of the Clerks Award pertaining to variations to hours and notice to changes to days worked may result in any disadvantage to employees. The Applicant submits that the provisions at clauses 35 and 38 of the Agreement operate to provide that variations to hours to be worked will be agreed in writing. The Applicant also indicates that clause 38 sets out that company initiated changes can only be made with 7 days’ notice, consistent with clause 10.4 of the Clerks Award. The final matter raised was in respect to part time safeguards in the Agreement being silent on all time worked in excess of ordinary hours agreed (or varied) being paid at the overtime rate applicable, as provided for at clause 10.6 of the Clerks Award and 10.8 of GRIA. In response the Applicant addressed this concern by clarifying that clause 19 relating to overtime for Retail Team Members and clause 28 relating to overtime for CCC Team Members provide that hours worked in excess of ordinary hours will be paid as overtime. Additionally, clause 17 b. relating to Retail Team Members and clause 26 b. relating to CCC Team Members provide that ordinary hours for team members employed on a part time basis will be the team member’s Core Hour (as determined or adjusted in accordance with clause 35) and will be less than 152 hours in each 4 week roster period for team members employed on a part time basis.
The Applicant also submits that the Agreement does not differ from a prior enterprise agreement in respect of part time safeguards and is of the view that its part time employees are a valued cohort of employees and many are supportive of approval. The Act was amended after the approval of the earlier enterprise agreement and the way the BOOT is applied has changed. The Commission may now consider reasonably foreseeable patterns or kinds of work or types of employment under the agreement by reference to the nature of the enterprise when applying the test. The Commission may also now, on application made under s. 227A, reconsider whether an agreement passes the BOOT where the patterns or kinds of work or types of employment differ either at the test time or a later time. In that regard I accept the explanations given about to the way the Agreement is intended to operate in relation to part time employees.
Given the undertakings and having regard to s.193A(6), and in particular the patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met. I note that should the work patterns, kinds of work or types of employment under the agreement change, an application under s.227A is available for a reconsideration of the BOOT.
A copy of the undertakings in relation to the matters raised under s. 186(2) (c) and (d) is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertaking are taken to be terms of the Agreement.
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186 and 187 are met.
The Shop, Distributive and Allied Employees’ Association, being bargaining representatives for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisations.
The Agreement was approved on 2 May 2024 and, in accordance with s.54, will operate from 9 May 2024 rather than on Sunday 14 July 2024, or the first Sunday that is at least seven days after approval as specified at clause 6 of the Agreement. The nominal expiry date of the Agreement at clause 6 is 30 June 2027.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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ANNEXURE A
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