Viola No. 2 Pty Ltd T/A IGA Balgowlah Heights

[2015] FWCA 5670

[2015] FWCA 5670

FAIR WORK COMMISSION

DECISION

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

Viola No. 2 Pty Ltd T/A IGA Balgowlah Heights
(AG2015/3200)

VIOLA NO.2 PTY LTD ENTERPRISE AGREEMENT 2015.

Retail industry
COMMISSIONER BULL	SYDNEY, 19 AUGUST 2015

Application for approval of the Viola No. 2 Pty Ltd Enterprise Agreement 2015.

[1] An application has been made for the approval of an enterprise agreement known as the Viola No. 2 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 8 July 2015 and 10 August 2015 with respect to 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 applicant was also advised that cl.13.2 of the Agreement, which relates to the requirement to work on a public holiday may be detrimental when compared to the National Employment Standards (NES) as per s.114 of the Act.

[3] At 3.4 of the applicant’s statutory declaration (F17) the applicant stated that in comparing the remuneration under the Agreement to the Award, employees are better off overall for each hour worked under the Agreement. The applicant further attached tables to the application in support of this position. At 3.6 of the F17 the applicant states that the Agreement does pass the BOOT.

[4] At 3.5 of the F17 there are some terms under the Agreement which the applicant listed as being “dealt with differently” rather than being less beneficial (as framed at question 3.5 of the F17) in comparison to the Award. The applicant lists these as being:

i. No annual leave loading being payable under the Agreement as this has been duly compensated for in the Agreement base rates of pay; and

ii. Uniform allowance not payable as a separate allowance as this has also been duly compensated under the Agreement’s base rate of pay.

Rates of pay for casual employees

[5] The rates of pay for casual employees under the Agreement, being only 0.5% above corresponding rates of pay in the Award, did not satisfy the Commission that these employees would be better off under the Agreement, taking into account casual employees under the Agreement:

i. Will not receive any shift or Saturday penalties or allowances; and

ii. Provides lower Sunday and public holiday penalties.

Rates of pay for adult permanent employees

[6] Adult permanent employees rates of pay under the Agreement, being only 3% above the corresponding rates of pay in the Award, did not satisfy the Commission that these employees would be better off under the Agreement, taking into account permanent employees:

i. Receive reduced shift and Saturday penalties; and

ii. Are not entitled to annual leave loading.

[7] 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 permanent and casual employees.

Requirement to work on a public holiday

[8] With respect to cl. 13.2 of the agreement - Public holidays, it states the following in relation to a request from the employer to work on a public holiday “The Employee may refuse the request (and take the day off) if the Employee has reasonable grounds for doing so, in accordance with the provisions of the Act.” It was noted to the applicant that this term of the Agreement may be detrimental to an employee when compared to s.114 of the Act (NES) which effectively provides that an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday, and an employer may request an employee to work on a public holiday if the request is reasonable.

[9] The applicant was advised that pursuant to ss.55 and 56 of the Act that a term of an enterprise agreement has no effect to the extent that it contravenes the NES.

Undertakings

[10] Where the Commission has a concern that an agreement does not meet the requirements set out in s.186 and s.187 which includes that the agreement does not pass the BOOT, s.190 provides the employer with an opportunity to provide written undertakings acceptable to the Commission aimed at meeting those concerns 1.

[11] Accordingly, on 10 August 2015, the applicant was written to offering an opportunity to address concerns regarding the pay rates of the Agreement. Percentage pay rate increases to the Agreement were proposed.

[12] On 22 July 2015, the applicant provided undertakings with pay rate increases as proposed by the Commission. The applicant also provided an undertaking with respect to the requirement to work on a public holiday which is in line with s.114 of the Act (NES).

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

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

[15] 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.

[16] 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.

[17] The Agreement is approved. In accordance with s.54(1), the Agreement will operate from 26 August 2015. The nominal expiry date of the Agreement is 4 years from the date of approval.

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

COMMISSIONER

Annexure A

 1   BUPA Care Services v P & A Securities Pty Ltd as trustee for the D’Agostino Family Trust T/as Michel’s Patisserie Murwillumbah and others[2010] FWAFB 2762 at (49).

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