True Fit Pty Ltd

[2010] FWA 2391

[2010] FWA 2391

FAIR WORK AUSTRALIA

DECISION

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

True Fit Pty Ltd
(AG2010/22528)

THE ATHLETES FOOT HOBART WORKPLACE AGREEMENT 2009

Wholesale and retail trade
COMMISSIONER DEEGAN	CANBERRA, 23 MARCH 2010

The Athletes Foot Hobart Workplace Agreement 2009

[1] An application has been made for approval of an enterprise agreement known as the Athletes Foot Hobart Workplace Agreement 2009 (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 Agreement was made during the bridging period as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). Accordingly, when considering whether to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act.

[3] The Agreement was lodged with Fair Work Australia (“FWA”) on 24 December 2009. Having conducted a preliminary examination to determine whether pre-approval processes 1 had been properly completed and to determine whether the Agreement was likely to pass the no-disadvantage test2 the matter was listed for a conference to discuss a number of concerns that had been identified.

[4] The conference took place on 25 January 2010. At the conference the respondent was represented by Mr A Bland, a solicitor. At the conference, when informed that it was my view that the Agreement did not pass the no-disadvantage test, Mr Bland immediately conceded that it did not appear to “from a rates point of view” 3 and that he thought “there was a bit of a mix up with the rates that ended up going in there.”4

[5] It was Mr Bland’s opinion that the rates needed to be “about three or four dollars higher…at least” 5 and that he would also provide an indicative roster for perusal by FWA. Mr Bland was informed that an undertaking would also be required in relation to any such roster, if it were to have any effect on the decision whether or not to approve the Agreement, given that rosters could be easily altered.

[6] Mr Bland stated that he would be able to provide the new rates and an indicative roster that afternoon. As the undertaking would need to be signed by the employer he advised that it would be provided at a later date.

[7] On 23 February 2010, given that no further documentation or information had been provided in relation to the matter, contact was made with Mr Bland to determine whether the respondent wished to continue with the application for approval. On 4 March 2010, as nothing further had been provided on behalf of the respondent, Mr Bland was advised that he had until 11 March to lodge any further material or the application would be dismissed.

[8] On 11 March 2010 Mr Bland supplied, on the respondent’s behalf, a proposed new clause 13 containing a revised wages schedule together with an undertaking about reconciliations being conducted to provide additional payment where it was determined that employees were paid less under the Agreement than had the Award continued to apply.

[9] In relation to the acceptance of undertakings the Act provides as follows:

Section 190 FWA may approve an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of an enterprise agreement has been made under section 185; and

(b) FWA has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

(2) FWA may approve the agreement under section 186 if FWA is satisfied that an undertaking accepted by FWA under subsection (3) of this section meets the concern.

Undertakings

(3) FWA may only accept a written undertaking from one or more employers covered by the agreement if FWA is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

FWA must seek views of bargaining representatives

(4) FWA must not accept an undertaking under subsection (3) unless FWA has sought the views of each person who FWA knows is a bargaining representative for the agreement.

Signature requirements

(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

[10] The proposed new clause 13 – Schedule of Base Wages was the cause of a number of new concerns and resulted in substantial changes to the Agreement. It is my view that I could not accept proposed new clause 13 by way of an undertaking.

[11] The proposed new clause 13:

• provides only one pay rate (apparently effective from the date of approval) where the original Agreement provided two rates, one effective 1 July 2009 and the other effective 1 July 2010



• introduces junior rates, a concept not included in the original agreement



• reduces the pay rates for assistant managers and managers



• removes the specific casual rate of pay for assistant managers and managers.

[12] It is also apparent that the changes proposed to the wage rates in the Agreement would cause financial detriment to any employee covered by the Agreement, who was aged less than 21 years or occupying an assistant manager or manager role, when measured against original clause 13 of the Agreement. Whether the clause would also cause financial detriment when measured against the applicable award is not as apparent but given that there is a substantial change to the Agreement and the provision set out in s.190(3)(b) is made out, it is not necessary for me to determine if s.190(3)(a) is also applicable.

[13] The Agreement, as was conceded by Mr Bland, does not pass the no-disadvantage test. The new clause proposed on the employer’s behalf cannot be accepted by way of an undertaking given that it would result in substantial changes to the Agreement.

[14] The application for approval of the Agreement is refused.

COMMISSIONER

 1   Fair Work Act 2009, s.186.

 2   Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, schedule 7.

 3   Transcript PN8.

 4   Transcript PN8.

 5   Transcript PN20.

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