Work Relations

[2014] FWCA 3554

[2014] FWCA 3554

FAIR WORK COMMISSION

DECISION

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

Work Relations
(AG2014/5848)

NONI B ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 6 JUNE 2014

Application for approval of the Noni B Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Noni B 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 application was lodged with the Fair Work Commission (the Commission) on 30 April 2014. The bundle of documents lodged with the Commission included the application (Form F16), the employer’s statutory declaration (Form F17), a copy of the Agreement and the statutory declaration of an employee organisation (Form F18), in this case, the Shop, Distributive and Allied Employees’ Association (SDA).

[3] On 12 May 2014, the Commission sent correspondence to the Applicant noting a number of concerns it had with certain aspects of the Agreement. The concerns included comments made by the SDA in the Form F18, the dispute settlement procedure, minimum shift engagement, span of ordinary hours, breaks, penalties, and allowances.

[4] A response together with undertakings was received from the Applicant on 22 May 2014. For the reasons below, the Agreement is approved.

Bargaining process

[5] The SDA states that it disagrees with certain answers provided in the employer’s statutory declaration, specifically with the answers provided in response to Parts 2.4, 2.5 and 2.8.

[6] Under Part 2.4, the Applicant describes the steps undertaken to provide the employees with access to the agreement as follows:

• From 4 March to 1 April, explanation sessions were conducted with Store Managers and Business Managers across the country;



• Tuesday 25 March was the last day the proposed agreement and material was made readily available to all employees; and



• From 4 March to 1 April, Store Managers and Business Managers explained the proposed agreement and process to retail employees using an agreement explanation document. 1

[7] Under Part 2.5, the Applicant stated that the agreement explanation document also provided information in relation to the date, time, location and method of the vote. As a result this information was provided during the information sessions held between 4 March and 1 April.

[8] In response to Part 2.8, the Applicant provided the following dates:

The date of the last notice of representational rights given to an employee who will be covered by the agreement	19 February 2014
The date voting for the agreement commenced (voting commences on the first date that an employee is able to cast a vote)	10 April 2014
The date that the agreement was made (that is, the date on which the voting process by which the employees approved the agreement concluded).	17 April 2014

[9] In Attachment A to the Form F18, the SDA provided the following comments:

“1. 2.4, 2.5 and 2.8 refer to the agreement explanation and voting process. The timeline for this process appears to have some incorrect dates and is missing some details.

The agreement explanation and voting process was as follows:

• Managers attended information sessions from 3 March to 1 April. The SDA attended most of these sessions and was available to answer questions.



• A copy of the proposed agreement was placed in stores following the briefings sessions given to the area managers but no later than 2 April.



• Information sessions were conducted in stores following the briefings sessions given to the area managers but no later than 2 April. The SDA attended many of the store information sessions and was available to answer questions.



• The 7 day notice period began on 2 April.



• Voting began on 10 April and finished on 14 April.



• The vote was counted on 17 April.

2. At 2.5. The SDA was involved in the agreement explanation process of the proposed EBA. The SDA attended the manager briefing sessions and the employee sessions at stores. The SDA was available to answer questions from employees. The SDA did not participate in the voting process.”

[10] In the correspondence of 22 May 2014, the Applicant agreed with the points made by the SDA except in relation to the information sessions which the Applicant says were conducted as stated in its Form F17. The difference in the details of the information sessions is not a matter of substance in this approval application.

[11] I note that 991 employees are to be covered by the agreement. 836 employees casted a valid vote and 794 of those valid votes voted to approve the agreement.

Minimum shift engagement

[12] In the Commission’s correspondence, the Commission noted that the General Retail Industry Award 2010 (the Retail Award) set a three hour minimum shift engagement for part-time and casual employees. Clause 5.3(f) of the Agreement on the other hand set a three hour minimum engagement except when an employee is attending a company meeting or training session.

[13] In the employer’s correspondence in response, the employer was concerned that a change from two hours to three hours minimum engagement for training or meetings would “likely see an end to training”. The employer submitted that this arrangement has been in place for 14 years and that the higher rates of pay compensate for this variation. Given that the rates of pay are approximately 8-9% higher than the rates under the Retail Award, I accept the employer’s submission and find that the employees are better off overall under the Agreement despite the variation in minimum shift engagement hours.

Undertakings

Dispute Settlement Procedure

[14] It is a requirement under s.186(6)(a)(ii) for an agreement to include a term that provides for independent dispute resolution to settle industrial disputes in relation to the National Employment Standards. The Commission noted in its correspondence to the Applicant that the grievance procedure clause found at clause 2.2 makes no mention of disputes that arise in relation to the National Employment Standards.

[15] The employer has provided an undertaking that the grievance procedure will apply to any disputes that arise in relation to the National Employment Standards.

Hours of work

[16] In its correspondence, the Commission noted that the Agreement does not appear to provide for a span of ordinary hours. The employer has provided an undertaking to the Commission that the ordinary span of hours will be those as provided at clause 27.2(a) of the Retail Award.

Breaks between shifts

[17] Clause 5.3(i) 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 Retail Award provided for 12 hour break which may be reduced to not less than 10 hours by mutual agreement.

[18] The employer has advised the Commission in its undertaking that breaks between shifts less than 12 hours are rare and only by mutual agreement.

Meal allowance

[19] In its correspondence the Commission noted that the Agreement does not provide for meal allowance. The employer’s response is that an employee’s entitlement to meal allowance rarely occurs as overtime is rare. This response has been incorporated into the employer’s undertakings. In circumstances where overtime is rare, I am satisfied that the employees would nevertheless be better off overall despite the lack of meal allowance.

Uniform

[20] The employer has submitted to the Commission that employees are not required to wear a uniform. Consequently the clothing allowance provisions (cl.20.2) of the Retail Award do not apply. This response has been incorporated in the employer’s undertakings.

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

[22] The Applicant should make known to its employees this decision and the undertakings it has provided to enable this Agreement to be approved.

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

[24] 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.

[25] 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.

[26] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 13 June 2014. The nominal expiry date of the Agreement is 31 March 2018.

COMMISSIONER

 1   This document was Attachment B to the employer’s statutory declaration.

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