The Big Shed Furniture Store

[2010] FWA 9497

[2010] FWA 9497

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Big Shed Furniture Store
(AG2010/8963)

THE BIG SHED PTY LTD ENTERPRISE AGREEMENT

Retail industry
COMMISSIONER GOOLEY	MELBOURNE, 10 DECEMBER 2010

Application for approval of The Big Shed Pty Ltd Enterprise Agreement.

[1] The Big Shed Pty Ltd (“Big Shed”) filed an application pursuant to section 185 of the Fair Work Act 2009 (“FW Act”) for approval of the Big Shed Pty Ltd Enterprise Agreement (“the Agreement”) on 3 May 2010.

[2] The Statutory Declaration filed with the application advised that there were no terms of the Agreement which were less or more beneficial than equivalent terms in the reference instruments.

[3] On 14 May 2010 I wrote to the Big Shed and raised a number of issues about the Agreement. In particular, I advised that I considered clauses 3, 6(c), 8, 13, 14 and 15 of the Agreement provided for less beneficial terms than provided for in the General Retail Industry Modern Award 2010 (“the Award”).

[4] I also raised a number of other issues with the Big Shed:

1. The Agreement referred to the Australian Fair Pay and Conditions Standard and Pay Scale.

2. The Agreement provided for the termination of employees in the qualifying period with one day’s notice.

3. The Agreement provided for the cashing out of annual leave in a manner inconsistent with the National Employment Standards.

4. The definition of immediate family in the Agreement did not include same sex partners and the parental leave provisions excluded same sex couples.

5. The Agreement provided for termination of employment without notice in a wider range of circumstances than permitted in the FW Act.

6. The Agreement at clause 25 provided for mediation being conducted in accordance with Part 13 Division 6 of the FW Act. No such provision exists.

7. The Agreement further made no provision for penalty rates or accident make up pay.

[5] The matter was listed for hearing on 26 May 2010 but the Big Shed did not attend the hearing which was then relisted for hearing on 17 June 2010.

[6] On 16 June 2010 I received correspondence from the Big Shed which advised that the flat rate of pay incorporated compensation for work performed on Saturday and Sunday. They advised that employees did not work overtime and did not work on public holidays. A number of proposed undertakings were included.

[7] At the hearing of the matter on 17 June 2010 Mr Anthony Aitken for the Big Shed appeared and a number of the issues were discussed, including that the Agreement did not reflect the actual working arrangements at the workplace. At the conclusion of the hearing I advised Mr Aitken that I would be prepared to consider any undertakings that he wished to put forward.

[8] My chambers contacted Mr Aitkin on 20 July 2010, 9 September 2010 and 27 September 2010 in relation to the undertakings. On 30 September 2010 Mr Aitken advised my chambers that he would respond after 14 October 2010. On 27 October 2010 and 25 November 2010 my chambers again contacted Mr Aitken about the undertakings but no response has been received.

[9] The Agreement provides for a flat rate of pay for weekly employees of $18.30 per hour and $21.49 per hour for casual employees. The rate provided by the Award at the test time was $15.86 per hour for weekly employees and $21.15 per hour for casual employees.

[10] The Agreement provides that weekly employees work 38 hours per week averaged over 52 weeks while the Award allowed house to be averaged over at most a four week period. The Agreement did not provide for part time employees to have reasonable predictable hours of work nor that any variations to the hours of work of part time employees are by agreement. Rostering arrangements under the Agreement are less favourable than the Award. The Agreement does not provide for penalty rates for working ordinary hours after 6pm nor for working on Saturday or Sunday. All overtime under the Agreement is paid at single time. Further, there are no penalties payable for employees who work on public holidays though the Agreement does provide for employees to receive a rostered day off in lieu to compensate for working on a public holiday. There is also no annual leave loading nor accident make up pay. There are no allowances payable under the Agreement and employees are required to pay a uniform deposit.

[11] For an Agreement to be approved it must satisfy the better off overall test. To assess the Agreement I must compare its terms with the terms of the Award and for the purpose of the transitional arrangements I have had regard to the provisions of the Shop Distributive and Allied Employees Victorian Shops Interim Award 2000 and the relevant pay scales.

[12] The rate of pay is said to compensate employees for working any hour of the day and any day of the week.

[13] I was provided with a two week roster. While I do not accept that the provision of a two week roster is a sufficient indication of the pattern of employees work, the roster established that weekly employees who regularly worked Sunday would be worse off under the Agreement than they would be under the Award.

[14] I have had regard to the submissions of the Big Shed about the operation of the business. However given the significant diminution of conditions under the Agreement compared with the Award I am not satisfied that the Agreement passes the better off overall test.

[15] Section 190 of the FW Act provides that undertakings may be given by an employer if Fair Work Australia is concerned that the agreement does not meet the requirements in section 186 or 187 of the FW Act. I provided the employer with an opportunity to provide undertakings however no written undertakings signed by the employer were ever provided.

[16] Consequently the application for approval is refused.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR504856>