Tiffany & Co. (Australia) Pty Ltd

[2014] FWCA 3203

[2014] FWCA 3203

FAIR WORK COMMISSION

DECISION

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

Tiffany & Co. (Australia) Pty Ltd
(AG2014/5820)

TIFFANY & CO. (AUSTRALIA) PTY LTD NATIONAL RETAIL ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 15 MAY 2014

Application for approval of the Tiffany & Co. (Australia) Pty Ltd National Retail Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Tiffany & Co. (Australia) Pty Ltd National Retail 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.

Undertaking

[2] The Commission wrote to the Applicant via its legal representative with respect to clause 4 - Hours of Work in the Agreement. In particular, the Commission notes that clause 4 provides that any full time employee will be required to work a minimum of 76 hours per fortnight plus reasonable additional hours as required by the Applicant. The Agreement does not provide for an ordinary span of hours as do the relevant modern awards for the purpose of the better off overall test, being the General Retail Industry Award 2010, the Clerks - Private Sector Award 2010 and the Manufacturing and Associated Industries and Occupations Award 2010.

[3] In correspondence from the Applicant’s representative it states that all employees under the Agreement are expected to work between the hours of 7:00am to 10:00pm, Monday to Sunday.

[4] The Applicant has provided an undertaking that in addition to the hours of work provided at clause 4 in the Agreement, employees will generally be rostered to perform work between 7:00am to 10:00pm, Monday to Sunday.

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

Consultation term

[6] In its application the Applicant has asked that the consultation term at Annexure 5 of the Agreement be read in accordance with the model consultation term as set out in Schedule 2.3 of the Fair Work Regulations 2009 (the Regulations).

[7] Pursuant to s.205(2) of the Act, the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

Allowances

[8] The Commission wrote to the Applicant via its legal representative requesting correspondence as to how employees are better off overall as the Agreement does not provide a meal allowance or clothing allowance as per the relevant modern awards.

[9] With respect to the meal allowance the Applicant’s representative has advised that whilst employees do not receive a monetary meal allowance, the Applicant does provide for a catered meal which affords employees a commensurate benefit in comparison to the meal allowance benefit the employees would otherwise receive under the underlying reference instruments. This is provided for at sub clause 1.2 of Annexure 2 of the Agreement.

[10] With respect to the clothing allowance, the Applicant’s representative has advised that the absence of a clothing allowance in the Agreement is offset by a number of other significant improvements in the Agreement when compared to the underlying reference instruments, in particular, the higher rates of pay.

[11] Upon review of the undertaking and correspondence provided I am satisfied that employees would be better off overall under the Agreement.

[12] The Agreement covers full time, part time and casual employees engaged in the classifications set out at Annexure 1 of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[13] 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.

[14] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 22 May 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[15] The Employer has advised that the minimum rates of pay for retail sales professionals at Annexure 1 - Classifications and Rates of Pay of the Agreement are operative from the first, second, third and fourth anniversaries of the approval of the Agreement by the Commission.

COMMISSIONER

Annexure A

Annexure B

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