Super Retail Group Services Pty Ltd T/A Super Retail Group

[2015] FWCA 5430

[2015] FWCA 5430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Super Retail Group Services Pty Ltd T/A Super Retail Group
(AG2015/3931)

SUPER RETAIL GROUP ENTERPRISE AGREEMENT 2015.

Retail industry
COMMISSIONER BULL	SYDNEY, 14 AUGUST 2015

Application for approval of the Super Retail Group Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Super Retail Group Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Shop, Distributive and Allied Employees’ Association (SDA) and the National Union of Workers (NUW) were employee bargaining representatives involved in the Agreement. Both unions have filed a statutory declaration (F18) stating that they support the approval of the Agreement and wish to be covered by the Agreement.

[3] At question 5 of the SDA’s F18, the SDA disagreed with the employer’s statutory declaration (F17) in effect stating that the first aid allowance (which is not provided under the Agreement) should be taken into account for the purposes of the better off overall test (BOOT). The SDA also raised concerns with respect to the base rates of pay for 20 year old casual employees as between the Agreement and the General Retail Industry Award 2010 (the Award), being one of the relevant reference instruments 1 for the purposes of the BOOT.

[4] The Fair Work Commission (the Commission) wrote to the applicant with its concerns, as well as addressing those raised by the SDA on a number of occassions. The concerns identified by the Commission related to the single interest employer test under s.172 of the Act, in addition to the first aid allowance and base rates of pay for 20 year old casual employees. Final undertakings were received from the applicant on 12 August 2015.

First Aid Allowance

[5] The SDA state that the Agreement anticipates that an employee may be required by the employer to hold an appropriate first aid qualification and perform first aid duties. The SDA refer to clause 20.9 of the Award, which states that where an employee who holds an appropriate first aid qualification is appointed by the employer to perform first aid duty, they will be paid an extra of 1.3% of the standard rate each week. In reference to the Agreement, the SDA rely on clauses 169 and 170 of the Agreement which provides the following:

169. If you are employed on a full time or part time basis, then upon your request we may agree to pay the cost of a first aid training course for you. We may agree to also cover the costs of you maintaining those qualifications.

170. If you are appointed to the duty of shift supervisor you may be required to undertake a first aid course. If this is required of you, we will pay for the cost of a first aid training course for you. We may also cover the cost of you maintaining the first aid qualification if it is necessary in the circumstances.

[6] The SDA also note that under the Agreement, 20 year old casual employees are paid 95% of the adult agreement rate (plus a 25% casual loading) whilst under the Award 20 year old casual employees who have been employed for more than 6 months are paid the full adult rate of pay (plus a 25% casual loading). The SDA go on to further state that whilst the base rate of pay for 20 year old casuals remains higher in the Agreement than the Award, the difference is relevant when determining if the Agreement passes the better off overall test.

[7] Subsequent to the application being lodged, a response was filed by the applicant in response to the concerns raised by the SDA on 24 July 2015. In that response, Mr Tindley (representative for the applicant) states that in relation to the first aid allowance referred to in the SDA’s F18, the Agreement does not contemplate retail team members being appointed as First Aiders.  Mr Tindley goes on to further state that the Agreement provides all employees with the opportunity to obtain their first aid qualifications with the employer’s agreement.  This is a benefit offered to employees to broaden their skills and qualifications, and also to position themselves when it comes to internal promotions.  The only employees who are appointed by the employer as First Aiders within the employer’s retail stores are the Assistant Store Manager and Store Manager.  Given the Award requires that employees be appointed by their employer to perform first aid duty, and no employees covered by the Agreement are appointed to perform first aid duty, it is correct to declare, as the employer did in its F17, that the first aid allowance has no application.

[8] In this respect, the Commission notes that, as specified at 2.2 of the applicant’s F17, the Agreement does not include employees engaged in managerial positions.

[9] On 11 August 2015, the Commission referred the applicant to cl.170 of the Agreement, stating that cl.170 clearly states that a shift supervisor may be required to undertake a first aid course, which is not the same as stating that the Agreement offers the opportunity for employees to obtain their first aid course, as was submitted in its’ correspondence of 24 July 2015.  On that basis, the Commission was of the view that the Agreement contemplated that such employees may be required to undertake first aid duties under the Agreement, and as such a first aid allowance should be contemplated, as submitted by the SDA.

Undertaking in reference to the First Aid Allowance

[10] The applicant has provided an undertaking which removes cl.170 of the Agreement, and as such the only clause of the Agreement which deals with first aid would be clause 169 which, as the applicant maintains is a benefit that is offered to employees, and not a requirement as such.

[11] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

Base Rates of pay for 20 year old casual employees

[12] With respect to 20 year old casual employee rates, who have worked for the employer for more than 6 months, Mr Tindley’s correspondence of 24 July 2014 stated that the employer acknowledges an oversight in relation to these employees.  While the employer believed 20 year old employees with more than 6 months service were better off overall, it has subsequently conducted calculations which demonstrate this is not the case.  In this respect, Mr Tindley stated in the correspondence that the employer would provide an undertaking to the effect that 20 year old employees with more than 6 months service will be paid the full adult casual rates applicable under the Agreement.

[13] Calculative comparisons between the Award and the Agreement were also attached to the correspondence, demonstrating that rates of pay under the Agreement are substantially higher than the Award and that it satisfies the BOOT.

[14] The Commission wrote to the applicant, copying in the unions on 3 August 2015 with respect to 20 year old casual employee percentage rates of pay being less than the Award, requesting an undertaking to address the issues identified.

[15] Correspondence was received from the applicant on 5 August 2015, with the requested undertaking in relation to 20 year old casual employees’ rates of pay.

[16] On 5 August 2015, the Commission advised the SDA via written correspondence of the undertaking provided by the applicant, and asked for any comment. Mr Dwyer of the SDA advised the Commission on 7 August 2015 that the SDA accepts the undertaking provided by the applicant, and that it continued to support the approval of the Agreement subject to it satisfying the BOOT.

Undertaking in relation to the base rate of pay for 20 year old casual employees

[17] The applicant has provided an undertaking which in effect states that the current 20 year old casual rates of pay in each clause will apply only to casual employees who have been employed for 6 months or less, and 20 year old casual employees who have been employed for more than 6 months will be paid the rates applicable to 21 years and above (adult) casual employees.

[18] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure B.

Single Interest Employer Authorisation (s.172(2) of the Act)

[19] The Commission noted that the application is for a single enterprise agreement, and at 2.3 of the application, there are 4 employers who are to be covered by the Agreement. Pursuant to s.172(2) of the Act, the Commission requested the applicant address how 4 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.

[20] The applicant, Super Retail Group Services Pty Ltd states that the other employers to be covered by the Agreement, being; Super Cheap Auto Pty Ltd, Super Retail Commercial Pty Ltd, SRG Leisure Retail Pty Ltd, and Rebel Sport Limited are all wholly owned subsidiaries of Super Retail Group Limited, and as such considered related bodies corporate within the meaning of the Act.

[21] Pursuant to s.172(5)(b), I am satisfied that the applicant and the employers to be covered by the Agreement are single interest employers within the meaning of the Act.

Conclusion

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

[23] With respect to the concerns raised by the SDA, it has accepted the undertaking provided by the applicant as adequately addressing the issue with respect to the pay rates of 20 year old casual employees. Issues raised in respect to the first aid allowance have been adequately addressed by the applicant, by the removal of cl.170 of the Agreement. As such, the applicant’s submissions with respect to the first aid allowance as having no application to the Agreement is accepted. Further, with regard to issues relating to employees being better off under the Agreement, the Agreement cannot be approved without meeting the requirements of the BOOT 2.

[24] The SDA and NUW has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these employee organisations.

[25] The undertakings provided by the applicant are taken to be terms of the Agreement. A copy of the undertakings are attached at Annexure A and Annexure B.

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

[27] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 21 August 2015. The nominal expiry date of the Agreement is 15 July 2018.

[28] This decision and undertakings should be brought to the attention of employees covered by the Agreement by the applicant.

COMMISSIONER

Annexure A

Annexure B

 1   The Storage Services and Wholesale Award 2010 and the Clerks Private Sector Award 2010 also currently cover the employer and the employees to be covered by this Agreement.

 2   Subject to any s.189(2) submission

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