Tabcorp Assets Pty Ltd

[2014] FWCA 886

[2014] FWCA 886

FAIR WORK COMMISSION

DECISION

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

Tabcorp Assets Pty Ltd
(AG2013/12820)

TABCORP VICTORIAN ON-COURSE REGIONAL MANAGERS ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 5 FEBRUARY 2014

Application for approval of the Tabcorp Victorian On-Course Regional Managers Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Tabcorp Victorian On-Course Regional Managers Enterprise Agreement 2013 (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] On 13 January 2014, the Commission wrote to the Applicant and the Australian Municipal, Administrative, Clerical and Services Union (ASU), being a bargaining representative for the Agreement, with respect to a number of concerns it had with aspects of the Agreement. In particular, the concerns related to the hours of work, public holidays, penalties and allowances.

[3] Correspondence was received from the Applicant on 28 January 2014.

Ordinary span of hours

[4] In its correspondence to the Applicant and the ASU the Commission noted that the Agreement did not provide for an ordinary span of hours as does the General Retail Industry Award 2010 (the Retail Award) and the Clerks - Private Sector Award 2010 (the Clerks Award), being the relevant modern awards for the purpose of the better off overall test.

[5] The Applicant submits that it has not specified a span of ordinary hours because of the unique way in which regional managers who are employed under the Agreement work. In particular, because each of the regional managers schedules are difference and there is no typical roster which would be a sensible basis for an ordinary span of hours.

[6] The Applicant has provided a number of indicative rosters and calculations that demonstrate employees are better off overall despite the Agreement not containing an ordinary span of hours

Breaks between shifts

[7] With respect to clause 9 - Hours of work, in particular sub clause 9(c) of the Agreement, it states that the Applicant will, wherever reasonably practicable, arrange rosters such that an employee has a break of at least 10 consecutive hours between successive shifts, provided that such break may be less than 10 hours where necessary and appropriate having regard to factors including operational requirements and the employee’s health and safety.

[8] Pursuant to sub clause 31.2 of the Retail Award,an employee will be granted a 12 hour rest period between the completion of work on one day and the commencement of work on the next day, unless an agreement between the employer and an employee or employees has been reached to reduce the 12 hour rest periods to not less than 10 hours.

[9] The Applicant has submitted that the likelihood that the break would be shorter than 10 hours is extremely low and it is the Applicant’s practice to always consult with the regional managers first to ensure they are comfortable with the arrangement.

Public holidays and penalties

[10] In its correspondence to the Applicant and the ASU, the Commission noted that the Agreement did not provide for public holiday and weekend penalties.

[11] The Applicant has provided a number of indicative rosters and calculations that demonstrate employees are better off overall despite the Agreement not containing these penalties.

Allowances

[12] In its correspondence to the Applicant and the ASU, the Commission noted that the Agreement did not provide for a number of allowances that are provided for under the relevant modern awards. In particular, the Agreement does not provide a meal allowance or clothing allowance.

[13] The Applicant submits that based on the indicative rosters and calculations submitted employees are better off overall despite the Agreement not containing a number of allowances. Further, the Applicant has stated that it provides uniforms for its regional mangers to wear during work and that they are provided with a corporate credit card that they are entitled to use to purchase meals up to a maximum value of $90.00 when they are required to travel overnight for work.

[14] No correspondence was received from the ASU.

[15] Upon review of the indicative rosters, calculations and correspondence received from the Applicant, I am satisfied that employees are better off overall under the Agreement.

[16] The Agreement covers employees who are employed in the state of Victoria as on-course regional managers. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[17] 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.

[18] The ASU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to it. In accordance with s.201(2) I note that the Agreement covers these organisations.

[19] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 12 February 2014. The nominal expiry date of the Agreement is 30 June 2015.

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