Travel Retail Australia Pty Ltd

[2015] FWCA 2617

[2015] FWCA 2617

FAIR WORK COMMISSION

DECISION

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

Travel Retail Australia Pty Ltd
(AG2015/1755)

TRAVEL RETAIL AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 16 APRIL 2015

Application for approval of the Travel Retail Australia Pty Ltd Enterprise Agreement 2014.

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

Travel Retail Australia 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.

[2] The Commission wrote to the applicant, its legal representative and employee bargaining representative on 10, 17 and 27 February 2015, with respect to the nominal expiry date of the Agreement and the better off overall test (BOOT).

[3] Correspondence was received from the applicant on 2, 19 and 23 March 2015.

Nominal expiry date

[4] With respect to clause 5 – Period of operation, the Commission noted that the Agreement specifies the nominal expiry date to be four years from the date of operation. Section 186(5)(b) of the Act states that the nominal expiry date for an agreement must not be more than four years from the date of approval. The Commission requested the applicant address this concern.

Undertaking

[5] The applicant has provided an undertaking which states that the Agreement has a nominal expiry date of four years from the date the Fair Work Commission approves the Agreement.

BOOT

[6] With respect to the BOOT, the Commission noted that there are entitlements which are less when compared to the General Retail Industry Award 2010 (the Award) being the relevant Award for the purposes of the BOOT. Less beneficial terms were acknowledged in the applicant’s Employer’s Statutory Declaration.

[7] The Commission raised concerns with respect to the Agreement not providing penalty rates for overtime work exceeding 3 hours, and that employees are expected to work on public holidays.

Overtime work

[8] With respect to cl.18 - Overtime, and in particular sub clause 18.2, the Commission noted that under the Agreement, no overtime penalty rate is provided for overtime work which exceeds 3 hours, when under the Award, overtime work which exceeds 3 hours is paid at 200% of the hourly rate.

Undertaking

[9] The applicant has provided an undertaking which provides that employees who work more than three hours of overtime on a Monday to Saturday (inclusive) will be paid at 200% of the base hourly rate. Full time or part time employees working on a Sunday will be paid at 200% of the hourly rate for all ordinary hours worked, and at 250% of the base hourly rate on public holidays.

Working on a public holiday

Undertaking

[10] The applicant has provided an undertaking which provides that an employee covered by the Agreement may be requested to work on a public holiday, if the request is reasonable, and that an employee may refuse the request, which is in accordance with s.114 of the Act.

[11] Additionally, the applicant provided a number of indicative rosters to demonstrate that employees would be better off under the Agreement.

[12] The undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached at Annexure A.

[13] 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.

[14] 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.

[15] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 23 April 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

[16] This decision and undertakings are to be brought to the attention of employees by the applicant.

COMMISSIONER

Annexure A

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