Tradelink Pty Ltd T/A Tradelink Pty Ltd
[2024] FWCA 456
•2 FEBRUARY 2024
| [2024] FWCA 456 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Tradelink Pty Ltd T/A Tradelink Pty Ltd
(AG2023/5411)
TRADELINK ENTERPRISE AGREEMENT (VIC & TAS) 2023
| Retail industry | |
| COMMISSIONER CONNOLLY | MELBOURNE, 2 FEBRUARY 2024 |
Application for approval of the Tradelink Enterprise Agreement (VIC & TAS) 2023
An application has been made for approval of an enterprise agreement known as the Tradelink Enterprise Agreement (VIC & TAS) 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tradelink Pty Ltd T/A Tradelink Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
The matter was allocated to my Chambers on 16 January 2024.
The notification time for the Agreement under s.173(2) was 11 September 2023 and the Agreement was made on 18 December 2023. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]
On 19 January 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.
In particular, an issue was identified where clause 13.1.1 of the Agreement provides for the span of hours to commence at 6:00am Monday through to Saturday. Clause 15.1 of the Retail Award and clause 13.1(b) of the Storage Award provide for the span of hours to commence at 7:00am. Clause 13.2 of the Storage Award allows for the span of hours to be moved up to one hour forward. Therefore, it appears the Agreement commencing time of 6:00am is inconsistent with employees covered by the General Retail Industry Award (GRIA).
I sought submissions from the Applicant in regard to the above and whether it is reasonably foreseeable that the existing roster pattern shall remain in place with regard to either employees not performing work before 7:00am or being compensated appropriately in the event that they do. The Applicant submits that:
“…the vast majority of Tradelink’s retail branches in Victoria and Tasmania do not ordinarily operate prior to 7am. However, there are two branches which are available to operate at 6.30 am, however no employee covered by the Agreement in either of those branches commences work before 7.00 am.”
[And further, that:]
“…it is reasonably foreseeable that the existing branch roster pattern in Victoria and Tasmania, where employees do not commence their shift prior to 7am, shall remain in place for employees working in the branch network. Those are the employees who, for BOOT purposes, would be assessed against the GRIA.”
I have accepted these submissions and note that should circumstances change with regard to the roster patterns and/or working arrangements, the parties may make an application to the Commission for a reconsideration of the BOOT pursuant to s.227A of the Act.
The “United Workers’ Union”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.
I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 May 2027.
COMMISSIONER
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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