Towergold Corporation Pty Ltd T/A The Greener Grocer

[2014] FWCA 7322

[2014] FWCA 7322

FAIR WORK COMMISSION

DECISION

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

Towergold Corporation Pty Ltd T/A The Greener Grocer
(AG2014/8749)

TOWERGOLD CORPORATION ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 16 OCTOBER 2014

Application for approval of the Towergold Corporation Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Towergold Corporation 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.

[2] The Commission wrote to the Applicant and the employee bargaining representatives on 23 September 2014, in relation to concerns it had with the Agreement. In particular, the concerns related to the ordinary hours of work, meal allowance and junior rates of pay.

[3] Correspondence was received from the Applicant on 30 September and 7 October 2014.

Undertakings

Ordinary hours of work

[4] The Commission notes that the Agreement at clause 12.1 - Ordinary Hours of Work, and in particular, sub clause 12.1(b) provides for a span of ordinary hours of work greater than the span provided under the General Retail Industry Award 2010 (the Award). Further at sub clause 12.1(c)(i) it provides that an employee will not be rostered to work more than 48 ordinary hours of work in any week, whereas the Award provides that a full-time employee will be rostered for an average of 38 hours per week.

[5] The Applicant was asked to provide indicative rosters and calculations to demonstrate how employees were better off overall.

[6] Upon review of the rosters by the Commission, the rosters demonstrated that some employees were not better off overall under the Agreement. The Applicant was requested to provide an undertaking to address this concern.

[7] The Applicant has provided an undertaking with respect to clause 17 - Base Rates of Pay to increase the rate of pay for a Shop Assistant to $19.95, up until the first full pay period on or after 14 August 2016, where the base rate of pay will be $20.28.

[8] With respect to the maximum weekly hours under the Agreement, the Applicant has provided an undertaking to apply the following clauses from the Award:

27.3 Maximum ordinary hours on a day

(a) An employee may be rostered to work up to a maximum of nine ordinary hours on any day, provided that for one day per week an employee can be rostered for 11 hours.

28. 38 hour week rosters

28.1 A full-time employee will be rostered for an average of 38 hours per week, worked in any of the following forms or by agreement over a longer period:

(a) 38 hours in one week;

(b) 76 hours in two consecutive weeks;

(c) 114 hours in three consecutive weeks; or

(d) 152 hours in four consecutive weeks.

28.2 The 38 hour week may be worked in any one of the following methods:

(a) shorter days, that is 7.6 hours;

(b) a shorter day or days each working week;

(c) a shorter fortnight, i.e. four hours off in addition to the rostered day off;

(d) a fixed day off in a four week cycle;

(e) a rotating day off in a four week cycle;

(f) an accumulating day off in a four week cycle, with a maximum of five days being accumulated in five cycles.

[9] Further, the Applicant has provided an undertaking to pay overtime for hours worked outside of the roster conditions prescribed in clause 13.1(c)(i) of the Agreement and clauses 27.3, 28.1 and 28.2 of the Award (as stated above).

Meal allowance

[10] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 12.2 - Meal and Rest Breaks, and in particular sub clause 12.2(a), to provide a 10 minute rest break for shifts of more than 5 hours and up to 7 hours.

Junior rates of pay

[11] In its correspondence to the Applicant, the Commission noted that the percentage of the adult rate of pay provided to a junior employee under 16 years of age at sub clause 17(b) of the Agreement was less than the percentage provided under the Award.

[12] The Applicant has provided an undertaking to increase the percentage of the adult rate of pay provided to a junior employee under 16 years of age to 45%.

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

[14] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[15] Pursuant to s.190(4) of the Act, the employee bargaining representatives have been made aware of the undertakings provided. The employee bargaining representatives have not advised of any concerns with the undertakings provided.

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

[17] 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.

[18] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 23 October 2014. The nominal expiry date of the Agreement is 14 August 2018.

[19] This decision is to be brought to the attention of the employees.

COMMISSIONER

Annexure A

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