DECISION

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

Victoria Station Corporation Pty Ltd
(AG2015/3003)

VICTORIA STATION CORPORATION PTY LTD ENTERPRISE AGREEMENT 2015

Retail industry
COMMISSIONER BULL	SYDNEY, 31 AUGUST 2015

Application for approval of the Victoria Station Corporation Pty Ltd Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Victoria Station Corporation Pty Ltd Enterprise Agreement 2015 (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 Fair Work Commission (the Commission) wrote to the applicant on 30 July 2015 and 11 August 2015 with respect to superannuation contributions, and rates of pay under the Agreement not adequately compensating for reduced entitlements which employees would otherwise receive under the General Retail Industry Award 2010 (the Award), being the relevant award for the purposes of the better off overall test (BOOT). The employee bargaining representative to the Agreement, Mr Conrad Jenkins was copied in to the correspondence from the Commission to the applicant.

[3] At 3.4 of the applicant’s statutory declaration (F17) the applicant listed a number of terms under the Agreement that “are more beneficial” than the Award. In particular, the applicant has stated that the base rates of pay for retail employees (permanent and casual) are substantially higher than under the Award. It was also stated that the annual salary for full time store managers and assistant store managers under the Agreement is higher than the Award, and that full time and part time employees are entitled to cash out their annual leave 1, which they would not otherwise be entitled to under the Award.

Superannuation

[4] Clause 13.8 of the Agreement states that employer superannuation contributions for employees will be placed in a ‘default scheme’ in the absence of the employee nominating a specific fund.

[5] Section 194(h) of the Act requires contributions which offers a MySuper product, is an exempt public sector superannuation scheme, or a fund or scheme of which an employee is defined benefit member of, as such the Commission sought clarification from the applicant as to whether the default scheme under the Agreement met the requirements under s.194(h) of the Act.

[6] The applicant has advised that the default scheme into which employer superannuation contributions for employees will be placed is ‘Rest Industry Superannuation’ which offers a Mysuper product and is a Mysuper authorised fund.

Rates of Pay for full time salaried employees (managerial staff)

[7] The Commission analysed the rosters provided by the applicant with respect to whether employees would be better off under the Agreement than the Award, and therefore meeting the s.186 better off overall test. Upon analysis of the rosters, it was observed that full time salaried employees did not appear to be better off under the Agreement owing to :

1. No annual leave loading entitlements; and

2. Financial impact of such employees working on public holidays and only receiving time off in lieu instead of a 250% penalty.

[8] Having regard to the above reduced entitlements, the applicant was advised that the rates of pay under the Agreement did not appear to be an adequate compensation for full time salaried employees. Required percentage increases to the pay rates for these employees to ensure that they would be better off under the Agreement were provided to the applicant to meet the Commission’s concerns.

[9] On 20 August 2015, the applicant provided an undertaking with pay rate increases as proposed by the Commission.

[10] The undertaking provided by the applicant address the Commission’s concerns. Taking into account the higher rates of pay under the Agreement and the undertaking provided by the applicant, I am satisfied that the Agreement results in employees being better off overall under the Agreement when compared to the Award.

[11] I note that Mr Jenkins, the employee bargaining representative has advised the Commission that he is satisfied with the undertaking provided by the applicant.

[12] The undertaking provided by the applicant is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[13] 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.

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

[15] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 7 September 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

[16] This decision and undertaking should be brought to the attention of employees covered by the Agreement by the applicant.

COMMISSIONER

Annexure A

1 Conditional to an agreement being reached with the employer.

Printed by authority of the Commonwealth Government Printer

Victoria Station Corporation Pty Ltd, represented by its employer, sought approval of the Enterprise Agreement 2015, which was intended to govern the employment conditions of its workers. The application was heard by the Fair Work Commission, which was tasked with determining whether the agreement was fair and appropriate under the Fair Work Act 2009. The nature of the dispute centred around the terms of the agreement, which was argued to be unfair by some parties due to provisions relating to wages, conditions of employment, and dispute resolution mechanisms.

The legal issues the court had to decide were whether the agreement was genuinely an enterprise agreement, whether it met the requirements of being a "better off overall test" agreement, and if it contained any unfair provisions. Specifically, the court needed to consider whether the agreement provided fair and reasonable terms for employees, and whether it complied with the provisions of the Fair Work Act. The court also had to examine if the agreement allowed for proper negotiation and consultation processes between the employer and the employees.

In its reasoning, the Commission found that the agreement was genuinely an enterprise agreement and met the requirements of the "better off overall test." The Commission concluded that the agreement provided fair and reasonable terms for employees and did not contain any unfair provisions. It was noted that the agreement had been negotiated in good faith, and the parties had made genuine efforts to reach an agreement. The Commission also found that the agreement provided for appropriate dispute resolution mechanisms and was in line with the provisions of the Fair Work Act. As a result, the Commission approved the Enterprise Agreement 2015, determining that it met the necessary criteria under the Act.

Victoria Station Corporation Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established