Woolworths Limited T/A Woolworths Supermarkets

[2014] FWCA 5478

[2014] FWCA 5478

FAIR WORK COMMISSION

DECISION

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

Woolworths Limited T/A Woolworths Supermarkets
(AG2014/6681)

WOOLWORTHS REGIONAL DISTRIBUTION CENTRE (WA) AGREEMENT 2014

Retail industry
COMMISSIONER BULL	PERTH, 12 AUGUST 2014

Application for approval of the Woolworths Regional Distribution Centre (WA) Agreement 2014 - undertakings provided.

[1] An application has been made for approval of an enterprise agreement known as the Woolworths Regional Distribution Centre (WA) 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] On 30 July 2014, the Commission wrote to the Applicant and the Shop, Distributive and Allied Employees’ Association (SDA) and the National Union of Workers (NUW) being bargaining representatives for the Agreement, over concerns it had with the Agreement. In particular, the concerns related to the span of ordinary hours, casual loading, dispute settlement procedure and the individual flexibility term.

[3] Correspondence was received from the Applicant on 6 August 2014.

Better off overall test

[4] In its correspondence to the Applicant and the SDA and NUW, the Commission noted that the Applicant had declared in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, a number of terms and conditions in the Agreement that were less favourable to those under the Storage Services and Wholesale Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test. In particular, the Agreement contains a greater span of ordinary hours and a casual loading which is less than the casual loading provided under the Award.

[5] The Applicant provided a number of indicative rosters and calculations to demonstrate that employees are better off overall under the Agreement when compared to the Award despite these lesser terms.

[6] Based on the indicative rosters and calculations provided by the Applicant, I am satisfied that employees are better off overall under the Agreement.

Dispute settlement procedure

[7] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 3.1 - Dispute Avoidance Procedure of the Agreement, that the procedure will apply to any disputes that arise in relation to the National Employment Standards as per s.186(6)(a)(ii) of the Act.

[8] The undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

Individual flexibility term

[9] In its correspondence, the Commission noted that the Applicant had declared in its Form F17 that the individual flexibility term could be found at clause 2.1 - Request for flexible working arrangements of the Agreement.

[10] Upon review of clause 2.1 the Commission advised the Applicant that the clause is not consistent with the terms that must be included pursuant to s.202(1) of the Act.

[11] As the Agreement does not contain a flexibility term that meets the requirements as set out at s.203 of the Act, the model flexibility term found at Schedule 2.2 of the Fair Work Regulations 2009 will be taken to be a term of the Agreement.

[12] A copy of the model flexibility term is attached at Annexure B.

[13] Pursuant to s.190(4) of the Act, the bargaining representatives have been made aware of the undertakings provided. The bargaining representatives have not advised of any concerns with the undertakings provided.

[14] The Agreement covers employees of the Perth Regional Distribution Centre who are engaged in the classifications contained in the Agreement and who work at the Perth Regional Distribution Centre, Perth International Airport. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or geographically distinct.

[15] I am satisfied that each of the requirements of ss.187, 188 and 190 of the Act as are relevant to the application for approval have been met.

[16] The Shop, Distributive and Allied Employees Association and the National Union of Workers being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[17] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 19 August 2014. The nominal expiry date of the Agreement is 30 June 2018.

COMMISSIONER

Annexure A

Annexure B

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