Work Relations

[2014] FWCA 5077

[2014] FWCA 5077

FAIR WORK COMMISSION

DECISION

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

Work Relations
(AG2014/6341)

LOVISA ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	PERTH, 28 JULY 2014

Application for approval of the Lovisa Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Lovisa Enterprise Agreement 2014 (the Agreement). The application was made by Work Relations on behalf of the employer pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Commission wrote to the Applicant, Work Relations as a bargaining representative appointed by the Employer, Lovisa Pty Ltd and the Shop, Distributive and Allied Employees’ Association (SDA), being a bargaining representative for the Agreement in relation to concerns it has with the Agreement. In particular, those concerns related to the Notice of Employee Representational Rights, ordinary span of hours, shift breaks and penalty rates.

[3] Correspondence was received from the Applicant on 16 and 24 July 2014.

Notice of Employee Representational Rights

[4] On 3 July 2014, the Commission wrote to the Applicant advising it that the Notice of Employee Representational Rights (NERR) that had been filed with the application contained the following paragraph:

“Lovisa gives notice that it is bargaining in relation to an enterprise agreement (the Bras N Things Enterprise Agreement 2014), which is proposed to cover employee that are covered by the Bras N Things Enterprise Agreement 2010.”

(My emphasis)

[5] The reference in the NERR to the Bras N Things Enterprise Agreement 2014 and the Bras N Things Enterprise Agreement 2010 appeared to be the incorrect enterprise agreement name. The Commission requested the Applicant to provide correspondence outlining how the requirements of s.174(1A) of the Act were met where the NERR gave notice of the incorrect agreement name.

[6] On 16 July 2014, the Applicant advised the Commission that the NERR does not intentionally modify the content or form of the notice but acknowledged that the errors are administrative and clerical by nature. The Applicant submits that the error was a result of two related companies (Lovisa Pty Ltd and Bras N Things Pty Ltd) rolling out proposed agreements at the same time.

[7] Correspondence was also received from the SDA on 16 July 2014, advising the Commission that it supported the Applicants submissions.

[8] I note that the NERR contains all of the content required under s.174(1A), however, an administrative error has resulted in the notice containing the incorrect agreement name.

[9] A Full Bench of the Commission in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (CFMEU) [2014 FWCFB 2042 has addressed additional material contained in the NERR. At paragraph 70, the Full Bench states:

[70] Thirdly, where additional material is provided with the Notice and that material has the character of being, for example, misleading or intimidatory, then this will be relevant to the Commission’s assessment of whether the enterprise agreement had been ‘genuinely agreed’ by the employees. However, it is not a basis for finding that a Notice has not been given in accordance with the Act.

[10] Based on the submissions of the Applicant and the support of the SDA there is no evidence that the Agreement has not been genuinely agreed to or that the NERR is misleading to employees to be covered by the Agreement.

[11] Given the administrative nature of the error, I am satisfied that a notice pursuant to s.174(1A) of the Act has been given.

Penalty rates

[12] In its correspondence to the Applicant, the Commission noted that the Agreement does not appear to provide penalty rates for hours worked on Saturday. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test provides a penalty payment of an additional 25% for ordinary hours worked on a Saturday and an additional 10%  for casual employees. Further, the Agreement at clause 4.4 – Sunday work, provides that an employee who works on Sunday will be paid 150% of their ordinary rate of pay. The Award provides a penalty payment of an additional 100% for all hours worked on a Sunday. The Commission requested the Applicant provide correspondence outlining how employees were better off overall under the Agreement despite the Agreement providing for lesser penalties than the Award.

[13] 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 the lesser penalty rate for work performed on a weekend.

Undertakings

Hours of work

[14] In its correspondence to the Applicant, the Commission noted that the Agreement does not appear to provide for a span of ordinary hours.

[15] An undertaking has been provided to the Commission that the ordinary span of hours will be those as provided at clause 27.2(a) of the Award.

Breaks between shifts

[16] Clause 4.3(g) of the Agreement provides that employees will receive a 10 hour break between the completion of work on one day and the commencement of work on the next day unless mutually agreed otherwise. In its correspondence, the Commission noted that the Award provided for 12 hour break which may be reduced to not less than 10 hours by mutual agreement.

[17] An undertaking has been provided to the Commission that breaks between shifts less than 12 hours are rare and where worked are done so with the agreement of the employee concerned.

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

[19] The undertakings were provided to the bargaining representative pursuant to s.190(4) of the Act. The bargaining representative the SDA has not advised of any concerns with the undertakings provided.

[20] Upon review of the correspondence, indicative rosters and undertakings provided to the Commission, I am satisfied that employees are better off overall under the Agreement.

[21] I am satisfied that each of the requirements of ss. 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.

[22] The SDA being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers this organisation.

[23] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 4 August 2014. The nominal expiry date of the Agreement is 31 March 2018.

COMMISSIONER

Annexure A

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