The Nuance Group (Australia) Pty Ltd

[2014] FWCA 8694

[2014] FWCA 8694

FAIR WORK COMMISSION

DECISION

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

The Nuance Group (Australia) Pty Ltd
(AG2014/9159)

THE NUANCE GROUP (AUSTRALIA) PTY LTD AND THE NATIONAL UNION OF WORKERS - NEW SOUTH WALES BRANCH - SYDNEY INTERNATIONAL AIRPORT OPERATIONS SUPPORT AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 3 DECEMBER 2014

Application for approval of The Nuance Group (Australia) Pty Ltd and The National Union of Workers - New South Wales Branch - Sydney International Airport Operations Support Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as The Nuance Group (Australia) Pty Ltd and The National Union of Workers - New South Wales Branch - Sydney International Airport Operations Support 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 14 October 2014, the Commission wrote to the Applicant and the National Union of Workers (NUW), being a bargaining representative for the Agreement with respect to concerns it had with the Agreement. In particular, the concerns related to annual leave, ordinary span of hours and allowances.

[3] Correspondence was received from the Applicant on 1 December 2014.

Ordinary hours of work

[4] In its correspondence to the Applicant and the NUW, the Commission noted that the span of ordinary hours of work provided for at clause 19 - Hours of work, are greater than the span of ordinary hours provided for under the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purposes of the better off overall test.

[5] Where the ordinary span of hours are greater than those in the Award, the Applicant in its correspondence states that it relies upon the provision under the Award at sub clause 27.2(b)(iii), that provides in the case of retailers whose trading hours extend beyond 9.00pm Monday to Friday or 6.00pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00pm.

[6] The Applicant has provided to the Commission a number of indicative rosters and calculations to demonstrate employees are better off overall under the Agreement despite the increased span of ordinary hours.

Allowances

[7] The Commission notes that the Agreement at clause 16.4 provides that the rates of pay incorporate service allowances, travel allowances, uniform/clothing allowances, course allowances and call back allowances.

[8] Further, the Agreement provides for a meal allowance that is less than the meal allowance afforded to employees under the Award.

[9] The Applicant has advised the Commission that based on the indicative rosters and calculations provided and as a result of the favourable rates of pay under the Agreement, employees are better off overall despite the reduction to these allowances.

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

Undertaking

[11] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 22 - Annual Leave & Loading, and in particular, sub clause 22.1, that annual leave will accrue progressively during a year of service according to the employee’s ordinary hours of work, as per s.87(2) of the Act.

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

[13] Pursuant to s.190(4) of the Act, the NUW has been made aware of the undertaking provided. The NUW has not advised of any concerns with the undertaking provided.

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

Flexibility term

[15] The Agreement does not contain a flexibility term. The model flexibility term found at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement. A copy of the model flexibility term is attached at Annexure B.

[16] The Agreement will cover all administrative employees performing work at the Sydney International Airport except for employees performing work in more senior management administration roles. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being geographically 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 National Union of Workers being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers this organisation.

[19] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 10 December 2014. The nominal expiry date of the Agreement is 31 October 2016.

COMMISSIONER

Annexure A

Annexure B

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