TAB Agents Association (SA Branch) Inc.

[2015] FWCA 216

[2015] FWCA 216

The attached document replaces the document previously issued with the code [2015] FWC 187 on 9 January 2015.

Mark Evans

Relief Associate to Commissioner Bull

Dated 9 January 2015

[2015] FWCA 216

FAIR WORK COMMISSION

DECISION

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

TAB Agents Association (SA Branch) Inc.
(AG2014/4049)

TAB AGENTS SOUTH AUSTRALIA CASUAL EMPLOYEES MULTI ENTERPRISE AGREEMENT 2013

Miscellaneous
COMMISSIONER BULL	SYDNEY, 9 JANUARY 2015

Application for approval of the TAB Agents South Australia Casual Employees Multi Enterprise Agreement 2013. ASU opposed approval based on incorrect reference instrument used for BOOT.

[1] On 20 March 2014, an application was made by Ms Susan Williams (the Applicant) as the bargaining representative of members of the TAB Agents Association (SA Branch) for approval of an enterprise agreement known as the TAB Agents South Australia Casual Employees Multi Enterprise Agreement 2013 (the Agreement). The application was filed on behalf of the Applicant by Ms Alexandra Thompson from Andersons Solicitors. The Agreement was initially allocated to Commissioner Cargill and was allocated to my Chambers on 16 April 2014.

[2] The proposed Agreement is a multi-enterprise agreement. Section 172(3) of the Fair Work Act 2009 (the Act) provides that two or more employers that are not single interest employers may make a multi enterprise agreement with the employees who are employed at the time the Agreement is made and whom will be covered by the Agreement. Section 186(2)(b) of the Act requires that the Agreement has been genuinely agreed to by each employer and no employer has been coerced to make the Agreement.

[3] A significant aspect of the enterprise agreement approval process is for the Commission to determine whether the Agreement passes the better off overall test (BOOT) 1. The Applicant representing the 33 employer parties to the Agreement submitted that there was no modern award covering the only classification in the Agreement, being a casual payer/seller, and that where employees are not covered by any modern award then the modern Miscellaneous Award 2014 (Miscellaneous Award) should apply for the purpose of determining the BOOT. There were approximately 44 employees at the time of making the Agreement.2

[4] On 4 April 2014, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) via its representative Mr Justin Cooney, alerted the Commission to concerns it had about the Miscellaneous Award being the nominated reference instrument for the purpose of determining the BOOT in the agreement approval process.

[5] The ASU submitted that the Clerks Private Sector Award 2010 (the Clerks Award) should be the relevant award for the purpose of determining the BOOT.

[6] On 23 April 2014, the Commission sent correspondence to the ASU directing it to provide written submissions by no later than close of business Thursday, 1 May 2014.

[7] On 1 May 2014, the ASU provided to the Commission an outline of submissions and a copy of a letter from the Fair Work Ombudsman dated 30 August 2013, to support the view that the Clerks Award provides coverage for people taking bets in “off course” wagering agencies.

[8] The Commission later sent further correspondence on 6 May 2014, directing the Applicant and the employer bargaining representative, Ms Susan Williams, to provide their response to the ASU’s submissions by no later than close of business Wednesday, 14 May 2014.

[9] On 15 May 2014, the Commission received the Applicant’s submissions in support of the Application. The submissions were forwarded by Ms Thompson from Andersons Solicitors and signed by Mr Tim Bryant as Counsel for the Applicant.

[10] A telephone conference was held in Chambers on 16 May 2014. Ms Thompson, Mr Bryant and Ms Williams appeared on behalf of the Applicant, and Mr Cooney appeared on behalf of the ASU.

[11] During the conference, the Commission directed the Applicant to provide further submissions by 23 May 2014. The submissions were to address whether the Agreement would pass the BOOT when tested against the General Retail and Shop Industry Award 2010 (the Retail Award). The Applicant was also requested to advise who the employer Applicants were, as the Form 17 appeared to have more listed employer names than employer signatures.

[12] On 27 May 214, the Applicant provided the Commission with supplementary submissions regarding the BOOT and the Retail Award.

[13] On 28 May 2014, a further telephone conference was held. The conference was attended by the same participants as had participated in the telephone conference of 16 May 2014. The main issue discussed was the relevant reference instrument for the BOOT.

[14] The Commission directed the Applicant to provide further submissions in regard to the BOOT and the modern Retail Award. The Applicant was to include indicative rosters, job descriptions and any undertakings regarding employees not working on public holidays and up to five Sundays per annum.

[15] On 11 July 2014, the Applicant provided the Commission with three documents:

• a statement of Ms Sue Williams - Bargaining representative for the Applicant;
• rosters of ten TAB agencies from May/June 2014 for the position of casual payer/seller; and
• a roster summary document.

[16] On 14 July 2014, the Applicant provided further supplementary submissions in support of the Application.

[17] A further telephone conference was held on 14 July 2014.

[18] The Commission again requested the Applicant provide an undertaking in the prescribed form regarding not working on public holidays and up to five Sundays per annum.

[19] The Commission also directed the ASU to provide final submissions by 25 July 2014 and for the Applicant to advise of any further comments.

[20] The matter was then listed for a hearing on 8 September 2014 in Melbourne with a video link to Adelaide. Mr Bryant of Counsel appeared for the applicant and was granted leave to appear pursuant to s.596(2)(a) of the Act.

Submissions

Applicant

[21] The Applicant’s initial position was that there was no modern award covering the employee classification and as such, the modern Miscellaneous Award should apply.

[22] This position was indicated on the Applicant’s Form 17 - Employer’s Statutory Declaration, which identified the Miscellaneous Award as the relevant reference instrument for the purpose of determining the BOOT.

[23] Clause 3.1 of the Form 17 states:

“There are no modern awards or agreements that clearly apply to the employees who will be subject to of (sic) this proposed agreement. Some employees are paid by reference to specific awards the applicability of which is to be questioned. Part of the purpose of this proposed agreement is to bring certainty to the employment conditions of persons employed in this industry. However some employees are employed and paid under the terms of the Miscellaneous Award 2010 and may be (sic) appropriate to refer to this award as a comparison with the present award.”

[24] The Applicant provided the Commission with an outline of submissions supporting the position that the modern Miscellaneous Award should be the relevant reference instrument for the purposed of the BOOT. Should the Miscellaneous Award not be accepted it was put in the alternative that the employees work can be characterised as sales rather than clerical and therefore they would be covered by the modern Retail Award.

[25] As this matter progressed, the Applicant submissions and position was directed to coverage by the Retail Award. 3

[26] The Applicant opposed the ASU’s position that the type of work engaged in by the employees is clerical work covered by the Clerks Award. The Applicant also stated the ASU have no member employees subject to the Agreement and was not involved in the Agreement negotiation process.

[27] In relation to the work conducted by the employees, the Applicant stated in their 15 May 2014 submissions at paragraph 3 that:

d. The only function that employees undertake is to pay and sell cash amounts to customers as determined by a third party (Tatts Group Ltd) betting terminal and to pay out in respect of such transactions for and on behalf of the third party;

e. Specifically, they take no part in determining the nature of the financial transaction, for example setting prices, framing markets or determining the odds, entered between the customer on the one hand and the third party on the other.”

[28] Further at paragraph 13:

13. Indeed the work done by such employees is no different from any retail employee at any newsagency processing a cross lotto form for a customer.”

[29] Mr Byrant submitted that if the employees are clerks due to the cash handling they undertake, then they are excluded from the Clerks Award and covered by the Retail Award. 4

ASU Submissions

[30] The ASU opposed the approval of Agreement on the basis that the Miscellaneous Award and the Retail Award are the incorrect reference instruments and submitted that the Clerks Award is the appropriate reference instrument for applying the BOOT. That being the case, the Agreement does not satisfy the BOOT.

[31] The ASU submitted at paragraph 22 of their 1 May 2014, submission that:

“... the industry conditions and the terms of conditions of employment of the employees are sufficiently analogous to clerical and administrative work generally to warrant the Clerks-Private Sector Award as the reference instrument.”

[32] The ASU argued that the type of work conducted by the employees is wagering and that wagering is a clerical and administrative industry, which is covered by the Clerks Award. 5 The history of award regulation in the wagering industry was canvassed in the ASU’s submissions. The ASU also relied on the Commission’s award modernisation decision6 in making the Clerks Award to support their argument.

[33] Further written submissions from the ASU were received on 30 July 2014, responding to those made by the Applicant.

[34] At the hearing, Mr Cooney submitted that the vast majority of work performed by employees was cash handling which falls within the Clerks Award. 7

Conclusion

Award Coverage

[35] In determining the appropriate reference instrument for the purposes of the BOOT it is necessary to understand the actual nature of the industry the employees are engaged in and the scope of their duties.

[36] The premises in which the employers operate are either wholly owned or rented by a third party Tatts Group Ltd. 8 Most agencies are located in stand-alone buildings or strip shops.9 Each employer is a member of the TAB Agents Association (SA Branch Inc). The control by Tatts Group Ltd over the employers operations is all-embracing, for example Tatts Group Ltd are responsible for the:

• premises and facilities used;

• opening and closing hours;

• procedures followed; and

• setting prices, framing markets, determining odds, benefits paid and the terms of payment. 10

[37] The nature of the employers’ business is to act as an agent for Tatts Group Ltd. Employers under the terms of their agreements with Tatts Group Ltd are contractually prevented from engaging in wagering, acting as a bookmaker, a bookmaker’s clerk or agent. 11 Most employers employ one or two employees. It is said that for the most part employees are students working outside lecture times, parents with child care responsibilities and retirees.

[38] Employers can operate as day or night agencies, opening hours are confined within the following span:

10.00am - 6:30pm Mon - Weds

10:00am - 10:00pm Thurs - Frid

09:30am - 9:00pm - Sat

10.30am - 5:30pm - Sun

[39] The busiest day is Saturday when the majority of race meetings and sporting events are held. 12 The work involved requires no specific training and for most employees only a 30 minute orientation is necessary to achieve the requite skills.

[40] The employees’ primary functions are to pay and sell cash amounts to customers. The employees are all engaged on a casual basis and do not work full time. The duties of a casual payer/seller are listed at sub clause 9.2 of the Agreement:

9.2 The indicative duties of a payer/seller include:

(a) Operating TAB equipment in order to sell TAB products to consumers and otherwise assist customers, including but not limited to -

(i) retail wagering terminals:

(ii) operation of touch screens:

(b) undertaking training as required as new products and technologies are introduced:

(c) advising and assisting customers with general service enquiries;

(d) responsible Service of Wagering:

(e) effectively updating all racing materials;

(f) processing Account Betting Transactions;

(g) balancing cash and tills at the end of shifts;

(h) ensuring the TAB Agency (or other venue/site of work) is presented in a clean and tidy manner;

(i) complying with all TAB operational and security procedures advised to them;

(j) adhering to all banking requirements including delivery of excess cash to designated banks as instructed;

(k) observing an adherence to procedures relating to the opening and closing of Agencies, including the securing of cash, as advised, and

(l) all tasks ancillary or incidental to these duties.

[41] Ms Williams, the Applicant’s bargaining representative, was cross-examined on her witness statement by Mr Cooney. Ms Williams’ evidence was that employees do not operate in conjunction with head office, where employees perform largely administration and clerical tasks, specifically wagering. 13 Most duties are associated with using a terminal where a customer transaction is processed. Employees pay and sell cash amounts to customers as determined by the betting terminals.14 Ms Williams stated that the best illustrative comparison would be with a casual shop assistant selling lottery tickets at a lottery kiosk.15

Clerks Private Sector Award 2010

[42] The Clerks Award provides at clause 4.1:

“4.1 This award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work, including administrative duties of a clerical nature, and to those employees. However, the award does not cover:

(a) an employer bound by a modern award that contains clerical classifications; or

(b) an employee excluded from award coverage by the Act.”

(My underline)

[43] Clause 3 Definitions and Interpretation of the Clerks Award defines clerical work in the following terms:

“clerical work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk”

(My underline)

[44] The Applicant states that employees do not attend to phone enquiries, maintain records, operate a switchboard, perform typing; nor are they involved in the preparation of invoices or reconciliation of accounts.

[45] The Applicant submits that all business is conducted on a personal level with the customer and the employees do not undertake clerical work. If on the other hand it is held that the employees undertake clerical work, they are excluded from the Clerical Award and covered by the Retail Award as it includes clerical classifications.

[46] This conclusion is reached as a result of the application of clauses 4.1 and 4.6 of the Clerks Award. Clause 4.1 repeated above provides that the Clerks Award does not cover an employer bound by a modern award that contains clerical classifications. Clause 4.6 states:

4.6 “Without limiting the generality of the foregoing this award does not cover employers covered by the following industry awards with respect to employees covered by the awards:

• ...

• The General Retail Industry Award 2010

• ...”

[47] Clearly the employees handle cash which is included as clerical work under the Clerks Award definition of clerical work extracted above. It appears from the evidence that handling cash (credit card transactions cannot be conducted 16) is principally what the employees are engaged in.

[48] The Applicant has stated that the employees are engaged in retailing rather than “wagering.” 17 The evidence has demonstrated that employees are principally involved in cash handling, a duty that meets the definition of “clerical work” under the Clerks Award, and as the employees are engaged, wholly or principally, in this work they would prima facie be covered by the Clerks Award despite the work not being traditional office based clerical work. However, this coverage defaults to that of the Retail Award pursuant to clauses 4.1 and 4.6 of the Clerks Award where the Retail Award also covers the work.

[49] The question then becomes whether the Retail Award contains a clerical classification covering the duties of a casual payer/seller.

General Retail Industry Award 2010

[50] The Retail Award coverage is described at clause 4. Sub clause 4.1 reads:

“This industry award covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16 - Classifications to the exclusion of any other modern award....”

[51] Clause 16 refers to the classifications contained in Schedule B. Schedule B describes the functions undertaken by retail employees between Levels 1 and 8. Each Level is related to functions performed by employees at a retail establishment. Various classification Levels refer to a clerical assistant and clerical officer. The Retail Employee Level 1 classification includes a clerical assistant which is defined as an employee accountable for clerical and office tasks as directed within the skill levels set out.

[52] The duties of a Retail Employee Level 1 18 include performing the following functions at a retail establishment:

• the receiving, arranging or making payment by any means;
• the recording by any means of a sale or sales;
• the provision of information, advice and assistance to customers.

[53] The above are tasks undertaken by the employees covered by the Agreement and the receiving, arranging or making payment by any means must include paying and selling cash amounts to customers, which the Applicant submits, is the principle task of the employees. 19 For the purposes of clause 4.1(a) of the Clerks Award, the Retail Award contains clerical classifications.

[54] The words retail establishment are not defined in the Retail Award although it was not argued by the ASU that the work premises being stand-alone buildings or strip shops and described by the Applicant as “high street businesses” were not retail establishments. 20

[55] There is however a definition of “general retail industry” which is described as:

“... the sale or hire of goods or services to final consumers for personal or household consumption.”

[56] A list of non-exhaustive examples is then provided, none of which neatly encompasses the employers’ business. The Applicant argues that the work of employees is more properly characterised as sales and therefore covered by the reference to the sale of services in the definition of retail establishment.

[57] I accept that the employers are engaged in the “general retail industry” in that they provide for the sale of a service to final consumers for their personal consumption. The substantial character of the employers’ enterprise is to take and pay bets via the retail point of sale (the betting terminals), to effect the betting odds and benefits that are dictated by the Tatts Group Ltd. 21

[58] Further support for this conclusion arises from clauses 4.7 of both the Retail and Clerks Awards which reads as follows:

“Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.”

[59] The nature of the work performed, the business of the employers and the priority given to the Retail Award at clause 4.6 of the Clerks Award would indicate the Retail Award is the most appropriate award in respect of coverage.

[60] A similar, in principle, conclusion was reached in the Full Bench decision of Mr David Joseph v Amandon Pty Ltd T/A World Business Travel 22the Full Bench held:

“[28] We note the broad description of the retail industry in the coverage and definitions clause of the General Retail Industry Award 2010 (General Retail Award). In our view the work of a travel consultancy in selling and making travel bookings on behalf of clients falls within the description of the retail industry because it involves selling goods and services to final consumers for personal or business consumption. ... We also are of the view that the Clerks (Private Sector) Award 2010 covers the substantial clerical nature of the work of travel consultants and their supervisor, although the most appropriate award to the business of Amandon is the General Retail Award because of the nature of the employer’s business and the priority given to the General Retail Industry Award in the coverage clause of the Clerks - Private Sector Award.”

[61] I have also had regard for the general principles of ascertaining award coverage. This Tribunal and its predecessors have applied the “principal purpose” test, which was articulated in the Full Bench decision of the Australian Industrial Relations Commission (AIRC) in R Brand v APIR Systems Limited. 23 The decision, cited the decision of the Full Bench of the AIRC in Carpenter v Corona Manufacturing Pty Ltd, which stated relevantly as follows:

“In our view, in determining whether or not a particular award applies to identified employment, more is required than a mere quantitative assessment of the time spent in carrying out various duties. An examination must be made of the nature of the work and the circumstances in which the employee is employed to do the work with a view to ascertaining the principal purpose for which the employee is employed.”

[62] The principle purpose for which payer/sellers are employed is to sell the TAB Group Ltd’s products, not to perform clerical work.

[63] The Full Bench went on to conclude:

“[14] In this appeal both parties accepted that the ‘principal purpose’ formulation as stated in Carpenter v Corona Manufacturing Pty Ltd should be applied. We are content to decide this application on that basis”

[64] This decision was delayed awaiting the outcome of the Full Federal Court decision in Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd 24 delivered on 3 November 2014. The Full Court considered the coverage of the Retail Award in respect ofoverlapping coverage with the Road Transport and Distribution Award 2010.

[65] The Full Court held that it was not necessary for the work of a Retail Employee Level 1 to be performed at a retail establishment, it is sufficient if a retail establishment is the base or location of the employment, even if the work is performed away from the retail establishment e.g. driver and door- to-door salesman. This finding is consistent with the view of Boulton J expressed in a decision to vary the Retail Award 25in accordance with the transitional review provisions where he held that work performed outside the walls of a shop could be covered under the award.

“[23] ... The present clause may give the impression that door-to-door sales is the only type of work conducted outside the walls of a shop that is covered by the Award, although no such restriction flows from the Award’s coverage or classification structure.”

[66] The issue of work outside the walls of a retail establishment does not arise in this case as the Applicant argues that the retail establishment is the stand-alone building or shop where the agency is based and the employees work. The Full Court decision is therefore not directly relevant to this matter.

Full Bench Award Modernisation Decision

[67] The ASU drew the Commission’s attention to the Award Modernisation decision of 19 December 2008, 26 in which the Full Bench made a number of comments relating to the coverage of the Clerks Award. It was stated that one objective of award modernisation is to limit the number of awards applying to a particular employer. The ASU had sought a general presumption in favour of coverage by the Clerks Award, for all employees covered by a general clerical occupational award or NAPSA. This was rejected with the Full Bench stating that while the Clerks Award will have significant coverage it will not cover all clerical employees in the private sector.27

“[221] The Australian Services Union (ASU), supported by some employer groups, sought the establishment of a general presumption in favour of coverage by the Clerks—Private Sector Award 2010 (the Clerks private sector award) for all employees currently covered by a general clerical occupational award or NAPSA. We do not consider that it is appropriate to establish a presumption of this type. It is clear that the Clerks private sector award will have very significant application. However it will not cover all clerical employees in the private sector.

[224] ... At this stage we have not excluded cash processing or wagering from the Clerks private sector award. We have included a definition of clerical work to make it clear that it is a term of broad application and includes cash processing. Clerks involved in wagering also fall within the scope of the award.”

(My underline)

[68] During the modernisation proceedings in May 2008, leading to the making of a number of modern awards including the Clerks Award, the Australian Council of Trade Unions (ACTU) made submissions to the Full Bench relevant to the Clerks Award. It was submitted the proposed Private Sector Clerical Industry Award would be subject to exclusions within specified industries including legal services, betting and lotteries. 28 It was submitted that the retail industry applies to all persons working in or in connection with any retail shop or establishment including clerical and administrative work performed within the four walls of the store.29

[69] The ASU submitted that certain industries should have their own sector clerical awards, these industries included TAB Betting and Lotteries. 30 Suffice to say the Full Bench did not accept the ASU’s position of separate clerical awards for these sectors. The Full Bench went on to make the Clerks Award and the Retail Award as priority awards. As stated in their decision, clerical work is a term of broad application and that the Clerks Award will not necessarily apply to employers covered by other awards with clerical classifications.31 The Retail Award was one of 22 final specific exclusions in the Clerks Award at clause 4.6, referred to above.

[70] I also note the comments of Glynn J in Clerical and Administrative Employees (Class Structure) State Award 32 when referring to the duties of a “clerk” that “The term, and indeed the office of "clerk", is one of venerable antiquity ... The work of the clerk is also evolving.”

[71] While clerks involved in wagering and cash handling also fall within the scope of the Clerks Award; for the reasons I have previously given I consider that the Retail Award more appropriately covers the classification of casual payer/seller in the Agreement now before the Commission for approval. As noted previously the employers in this application are contractually prevented from engaging in wagering.

Miscellaneous Award 2010

[72] Clause 4 - Coverage of the Miscellaneous Award provides that its coverage shall apply to classifications listed in clause 14 who are not covered by any other modern award. There are a number of exemptions to coverage, which are not applicable in this matter. As I have concluded, the Retail Award would cover the employees bound by the Agreement in the absence of the Agreement being approved; as such consideration of the Miscellaneous Award for the BOOT does not arise.

Better Off Overall Test

[73] The Applicant and the ASU accepted that the Agreement does not pass the BOOT if the Clerks Award is used as the reference instrument. However, having held that the Retail Award covers the employers and employees 33 the Clerks Award cannot qualify as the reference instrument for the purposes of the BOOT but rather the Retail Award is the appropriate reference instrument. The ASU made no submissions regarding the Retail Award and the BOOT.

[74] The classification of casual payee/seller was said to be equivalent to the classification of Retail Employee Level 1 under the Retail Award. 34 The Agreement provides at sub clause 10.2 that employees are to receive a 3% per annum increase on their hourly rate for the duration of the Agreement. It was submitted by the Applicant this is a benefit that must be taken into consideration when undertaking the BOOT.

[75] At the telephone conference held on 14 July 2014, the Commission raised some concerns regarding the BOOT when applied to the Retail Award. The Applicant advised that the employers would consider providing undertakings to deal with these concerns. The undertakings were included in the Applicant’s written submissions of 14 July 2014 and in a final form on 7 January 2015. The 7 January undertakings were made upon a further request from the Commission, to provide an undertaking that all employees will be paid as of January 1 2015, the rate specified for the second year as per clause 10.1 of the Agreement.

[76] The undertakings read as follows:

“1. Sunday shifts rostered to casuals at each agency are to be shared equally between the casuals employed by that Agent at that agency

2. No casual is to work more than 4 Public Holidays in any one year.

Further to the above, the wage rates proposed in the second year will apply as at 1.1.2015.”

[77] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[78] The undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[79] Further in respect of the BOOT the Applicant submits that:

(1) The hourly rate applicable for employment is in all cases from Monday to Saturday inclusive higher than the corresponding hourly rate under the General Retail Award 2010.

(2) The rate for Sunday work is less under the proposed agreement than under the General Retail Award 2010 but not such as to offset the advantage in other periods from Monday to Saturday.

(3) Similarly the rate for Public Holiday work is less under the proposed agreement than under the General Retail Award 2010 but not such as to offset the advantage in other periods from Monday to Saturday provided such work offered to employees be limited to not more than 4 days per year.

(4) The meal allowance provided under the proposed agreement is more generous financially then that provided under the General Retail Award 2010.

[80] On the basis of the submissions of the Applicant, the roster summary tendered and the undertakings provided, I am satisfied that the requirements under s.186(2)(d) and s.193(1) being that the employees are better off overall under the Agreement have been meet.

[81] The Agreement will cover employees classified as a casual payer/sellers working for the employers listed in Schedule 1 to the Agreement

[82] I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being geographically or organisationally distinct.

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

[84] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 16 January 2015. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

Appearances:

Mr Bryant, Counsel for the Applicant.

Mr Justin Cooney for Australian Municipal, Clerical and Services Union - (New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Branch

Hearing details:

2014.

Melbourne with video link to Adelaide:

8 September

Annexure A

Dear Commissioner Bull

AG2014/4049

Please find below Undertakings as requested as per our phone call of 7.1.15.

I, Susan Jane Williams , have authority to act on behalf of the employers of the SA TAB Agents Association in the matter of providing the following undertakings for inclusion in the TAB Agents South Australia Casual Employees Multi Enterpirse Agreement 2013:

1.Sunday shifts rostered to casuals at each agency are to  be shared equally between  the casuals employed by that Agent at that agency

2. No casual is to work more than 4 Public Holidays in any one year.

Further to the above,the wage rates proposed in the second year will apply as at 1.1.2015.

Thank you

Looking forward to hearing from you soon. I have advised all agents of this regarding the amendment of the rates.

Kind Regards

Sue Williams

 1   S.186(2)(d)

 2   Applicant’s Supplementary Submissions 14 July 2014, at 20(2)

 3   Applicant’s Supplementary Submissions 14 July 2014, at (8)

 4   PN85

 5   ASU Outline of submissions 1 May 2014 at (21)

 6   [2008] AIRCFB 1000

 7   PN75, 87

 8   Applicant’s submissions 15 May 2014 at (3)

 9   Witness Statement of Susan Williams Exhibit A1 at (6)

 10   Applicant’s submissions 15 May 2014 at (3)

 11   Applicant’s submissions 15 May 2014 at (9)

 12   Witness Statement of Susan Williams Exhibit A1 at (10)

 13   Witness statement of Susan Williams at (12) Exhibit A1

 14   Applicant’s written submissions of 15 May 2014 at 3(d)

 15   PN37 and Witness statement of Susan Williams at (16) Exhibit A1

 16   PN71

 17   Applicant’s Supplementary Submissions 14 July 2014, at (3)

 18   See Schedule B Classifications

 19   Applicant’s written submissions of 15 May 2014 at 3(d)

 20   Ibid at (6)

 21   Witness statement of Susan Williams at (8) Exhibit A1

 22   [2013] FWCFB 8539

 23   PR938031

 24 [2014] FCAFC 148

 25   Modern Awards Review 2012 - General Retail Industry Award 2010 re Transitional review of modern awards [2013] FWC 6056

 26   [2008] AIRCFB 1000

 27   Ibid at paragraph 221

 28   AM 2008/1 Transcript of 26 May 2008 at PN87

 29   Ibid PN98

 30   Ibid PN485

 31   [2008] AIRCFB 1000 at [222]

 32 [1996] NSWIRComm 190

 33   This decision is specific to the classification of the employees and this Agreement not a general finding for the wagering industry.

 34   Applicant’s submissions of 15 May 2014 at (34)

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