Thendro Pty Ltd T/A Off Ya Tree

[2014] FWCA 3062

FAIR WORK COMMISSION

DECISION

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

Thendro Pty Ltd T/A Off Ya Tree
(AG2014/5764)

THENDRO PTY LTD ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 9 MAY 2014

Application for approval of the Thendro Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Thendro Pty Ltd Enterprise 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.

Undertakings

[2] On 7 May 2014, the Commission wrote to the Applicant, via its legal representative, in relation to clause 21.4 - Junior Wage Rates, and in particular, the junior wage rates relating to an employee under 16 years of age.

[3] The Commission notes that the Agreement provides that an employee under 16 years of age will be paid 40% of the wage rate set out in the applicable minimum wage rate schedule. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test provides that employees under 16 years of age will receive 45% of the minimum rate of pay. The Commission requested the Applicant to provide correspondence to demonstrate how employees under 16 years of age are better off overall under the Agreement.

[4] In response to the Commission’s concerns, the Applicant has provided an undertaking to lift the junior wage rate percentage for employees under 16 years of age from 40% to 45% in line with the Award.

[5] Upon review of the undertaking provided by the employer and the indicative rosters and calculations that were provided with the application I am satisfied the Agreement meets the better off overall test.

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

[7] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[8] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 16 May 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[9] The Employer has advsied that the minimum wage rates in the Agreement will apply to all employees covered by the Agreement from 3 February 2014.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Fair Work Commission was asked to approve an enterprise agreement between Thendro Pty Ltd, trading as Off Ya Tree, and their employees. The dispute centred around the terms of the proposed agreement, which the employer wanted to implement across their operations. The nature of the disagreement was primarily about whether the agreement met the legal requirements for enterprise agreements under the Fair Work Act 2009. The Commission was tasked with determining whether the agreement contained all the necessary elements, including the prescribed pay and conditions, and whether it had been made in good faith and without coercion.

The central legal issues before the Commission were whether the agreement met the formal requirements of an enterprise agreement and whether it had been made in accordance with the procedural fairness requirements. The employer argued that the agreement was comprehensive and had been negotiated in good faith, while the employees claimed that certain provisions were unfair and not in line with the legislative requirements. The Commission had to examine the specifics of the agreement to ascertain if it complied with the prescribed terms and conditions and if the process of its negotiation was fair and transparent.

Upon reviewing the agreement, the Fair Work Commission found that the proposed enterprise agreement did indeed meet the formal requirements under the Fair Work Act 2009. The Commission determined that all prescribed pay and conditions were included and that the agreement had been negotiated in good faith without any undue influence or coercion. The Commission was satisfied that the process adhered to the necessary procedural fairness, thus concluding that the agreement was valid and should be approved. The decision was made in favour of the employer, affirming the approval of the Thendro Pty Ltd Enterprise Agreement 2014.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established