Toys "R" Us Australia Pty Ltd

[2014] FWCA 6254

[2014] FWCA 6254

FAIR WORK COMMISSION

DECISION

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

Toys "R" Us Australia Pty Ltd
(AG2014/8610)

TOYS "R" US STORE EMPLOYMENT AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 9 SEPTEMBER 2014

Application for approval of the Toys "R" Us Store Employment Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Toys "R" Us Store Employment 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 1 September 2014, the Commission alerted the Applicant via its representative, the National Retail Association, to concerns it had with respect to the Agreement. In particular, the concerns related to ordinary span of hours, annual leave loading, superannuation and the dispute settlement procedure. The application indicated that no employee bargaining representative had been appointed.

[3] Correspondence was received from the Applicant on 4 September 2014.

Correction of error

[4] With respect to clause 11 - Superannuation, and in particular, sub clause 11(b)(ii) of the Agreement, it states that the employer’s default superannuation fund is the Retail Team Members Superannuation Trust.

[5] The Commission requested further information as to how the default fund satisfies the requirements pursuant to s.194(h) of the Act.

[6] The Applicant advised the Commission that the reference to the ‘Retail Team Members Superannuation Trust’ at sub clause 11(b)(ii) of the Agreement is a typographical error made as a result of a global change to the terminology used in the Agreement.

[7] Pursuant to s.586(a) of the Act, the Commission may allow for a correction or amendment of any application, or other document relating to a matter before the Commission, on any terms it considers appropriate. On the request made by the Applicant with respect to the typographical error, the clause will be amended to reference the Retail Employees Superannuation Trust, which the Applicant submits has obtained MySuper authorisation and therefore complies with s.194(h) of the Act.

Better off overall test

[8] In its correspondence to the Applicant and its representative, the Commission noted that the Agreement contains a span of ordinary hours greater than the General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test. Further, the rates of pay contained in the Agreement are inclusive of annual leave loading.

[9] The Commission requested the Applicant to provide a number of indicative rosters and calculations to demonstrate how employees are better off overall despite the increased span of ordinary hours and the rates of pay being inclusive of annual leave loading.

[10] The Applicant has provided a number of indicative rosters and calculations. Upon review of this correspondence, I am satisfied that employees would be better off overall under the Agreement.

Undertaking

[11] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 37 - Dispute and Grievance Resolution, of the Agreement. In particular, that the dispute settlement procedure in the Agreement will apply to any disputes that arise in relation to the National Employment Standards as per s.186(6)(a)(ii) 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.

Model flexibility term

[13] In the Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17), the employer declared that the flexibility term was as per the Act. The Agreement does not otherwise contain a flexibility term that meets the requirements under s.203 of the Act.

[14] As the Agreement does not contain a flexibility term that meets the requirements as set out at s.203 of the Act, the model flexibility term found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) will be taken to be a term of the Agreement.

[15] A copy of the model flexibility term is attached at Annexure B.

Model consultation term

[16] In the Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17), the employer declared that the consultation term was as per the Act. The Agreement does not otherwise contain a consultation term that meets the requirements under s.205 of the Act.

[17] As the Agreement does not contain a consultation term that meets the requirements as set out at s.205(1) of the Act. Pursuant to s.205(2), the model consultation term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement.

[18] A copy of the model term is attached at Annexure C.

[19] 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.

[20] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 16 September 2014. The nominal expiry date of the Agreement is 31 May 2017.

COMMISSIONER

Annexure A

Annexure B

Annexure C

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