Wittner's Australia Pty Ltd; Wittner's NSW Pty Ltd

[2013] FWCA 8602

[2013] FWCA 8602

FAIR WORK COMMISSION

DECISION

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

Wittner's Australia Pty Ltd; Wittner's NSW Pty Ltd
(AG2013/8854)

WITTNER ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 31 OCTOBER 2013

Application for approval of the Wittner Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Wittner Enterprise Agreement 2013 (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] On 10 October 2013, the Commission sent correspondence to the Applicant via its legal representative with respect Part 4 - Hours of Work, in particular, sub clause 4.5 of the Agreement that relates to penalty rates on a Sunday.

[3] The Commission notes that at sub clause 4.5 of the Agreement employees will be paid 150% of the ordinary rate for work performed on Sunday. Under the General Retail Industry Award 2010 (the Award) being the relevant modern award for the purposes of the better off overall test, employees who work on a Sunday receive a penalty of 100% in addition to their ordinary rate of pay. Further, the Agreement did not appear to provide a penalty rate for hours worked on a Saturday. Under the Award employees who work on a Saturday would receive a penalty of 25% in addition to their ordinary rate of pay.

[4] The Applicant has provided a number of indicative rosters and calculations to demonstrate that employees under the Agreement would be better off overall despite the lesser penalty rates than the Award.

Undertakings

Ordinary hours of work

[5] In its correspondence to the Applicant, the Commission noted that with respect to Part 4 - Hours of Work, in particular, sub clause 4.2 of the Agreement, the ordinary span of hours were greater than the ordinary span of hours provided for under the Award, being the relevant modern award for the purposes of the better off overall test.

[6] Where the ordinary span of hours are greater than those in the Award, the Applicant in its correspondence states that it relies upon the provision under the Award at sub clause 27.2(b)(iii), that provides in the case of retailers whose trading hours extend beyond 9.00pm Monday to Friday or 6.00pm on Saturday or Sunday, the finishing time for ordinary hours on all days of the week will be 11.00pm.

[7] The Applicant has provided an undertaking in relation to sub clause 4.2(a) of the Agreement that the ordinary hours of work on Sunday will commence at 9:00am, in line with the Award.

Shift breaks

[8] With respect to Part 4 – Hours of Work, in particular sub clause 4.3(h) (b)(vi), the Applicant has provided an undertaking that pursuant to sub clause 31.2 of the Award,an employee will be granted a 12 hour rest period between the completion of work on one day and the commencement of work on the next day, unless an agreement between the employer and an employee or employees has been reached to reduce the 12 hour rest periods to not less than 10 hours.

[9] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

Model Flexibility Term

[10] The Agreement does not contain a flexibility clause. The Applicant has requested that the Model Flexibility Term be adopted as a term of the Agreement. Pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

Model Consultation Term

[11] The Agreement does not contain a consultation clause. The Applicant has requested that the Model Consultation Term be adopted as a term of the Agreement. Pursuant to s.205(2) of the Act, the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure C.

[12] The Agreement covers fashion consultants, assistant store managers and store managers of Wittner employed throughout Australia. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[13] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[14] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 7 November 2013. The nominal expiry date of the Agreement is 30 August 2017.

COMMISSIONER

Annexure A

Annexure B

Annexure C

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