The Reject Shop Limited

[2014] FWCA 9372

[2014] FWCA 9372

FAIR WORK COMMISSION

DECISION

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

The Reject Shop Limited
(AG2014/10081)

THE REJECT SHOP AGREEMENT 2014.

Retail industry
COMMISSIONER BULL	SYDNEY, 22 DECEMBER 2014

Application for approval of The Reject Shop Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as The Reject Shop Agreement 2014 (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 10 December 2014, the Commission wrote to the applicant and the Shop, Distributive and Allied Employees Association (SDAEA) as a bargaining representative for the Agreement in relation to the concerns with the Agreement. In particular, the concerns related to casual loading, ordinary spread of hours, penalties, minimum break between shifts, and casual employees.

[3] Correspondence was received from the applicant on 17 and 18 December 2014.

Undertakings

[4] With respect to clause 17 - Casual Team Members, in particular, sub clause 17.3(1), the Commission noted that overtime does not apply to casual team members except sub clause 24.6. In correspondence to the applicant, the Commission requested correspondence outlining the relationship between sub clause 17.3(1) and sub clause 24.7 which appears to refer to casual employees.

[5] The applicant has provided an undertaking with respect to sub clause 17.3(1) that over time provisions apply to casual team members for the purposes of sub clauses 24.6 and 24.7.

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

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

[8] 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.

Casual loading

[9] With respect to clause 4.2 - Ordinary Hourly Rate, and in particular, sub clause 4.2(2) the Commission noted that casual team members employed in a state other than Victoria are paid a casual loading less than the General Retail Industry Award 2010 (the Award), being the relevant award for the purpose of the better off overall test. The Commission requested correspondence as to how casual employees were better off under the Agreement.

[10] The applicant submits that the base rates of pay under the Agreement are higher than the Award which compensates for casual loading being less than the Award. The applicant has provided a number of calculations to demonstrate this.

Ordinary spread of hours

[11] With respect to clause 13 - Ordinary Spread of Hours, and in particular, sub clause 13.1 the Commission noted that the span of ordinary hours is greater than the Award, particularly during Christmas trade. The Commission requested correspondence to demonstrate how employees were better off under the Agreement despite the increased spread of ordinary hours.

[12] The applicant has provided a number of indicative rosters (including two weeks in December) and calculations that demonstrate employees are better off overall under the Agreement despite the increase spread of ordinary hours.

Penalties

[13] With respect to clause 14 - Penalties, and in particular, sub clause 14.1, the Commission noted that penalty rates under the Agreement appeared to be less than under the Award. The Commission requested correspondence to demonstrate how employees were better off overall with the lesser penalty rates provided under the Agreement.

[14] The applicant submits that employees are afforded a higher hourly rate of pay which compensates for the lesser penalty rate under the Agreement. The applicant has provided a number of calculations and indicative rosters to demonstrate this.

[15] Upon review of the rosters and calculations I am satisfied that despite the increased spread of ordinary hours and reduced penalties, employees would be better off overall under the Agreement.

Minimum break between shifts

[16] With respect to clause 15 - Full-time and Part time team members, and in particular, sub clause 15.9 of the Agreement, the Commission noted that employees receive a minimum break of 10 hours between the end of work on one day and the commencement of work on the following day. The Award provides that employees will be granted a 12 hour rest period between the end of work on one day and the commencement of work on the following day. The Commission requested correspondence to demonstrate how employees were better off in relation to clause 15.9 or for the applicant to provide an undertaking in relation to this clause.

[17] The applicant has submitted that as the employees have voted to approve the Agreement, effectively an agreement has been reached with the employer to reduce the minimum break between shifts to 10 hours.

[18] 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.

[19] The Shop, Distributive and Allied Employees Association being a bargaining representative for the Agreement have 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.

[20] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 29 December 2014. The nominal expiry date of the Agreement is 1 March 2018.

COMMISSIONER

Annexure A

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