Work Relations

[2013] FWCA 6616

[2013] FWCA 6616

FAIR WORK COMMISSION

DECISION

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

Work Relations
(AG2013/7501)

IKEA ENTERPRISE AGREEMENT 2013

Retail industry
COMMISSIONER BULL	SYDNEY, 5 SEPTEMBER 2013

Application for approval of the IKEA Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the IKEA 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 7 August 2013, the Commission wrote to the Applicant, Work Relations as a bargaining representative appointed by the Employer, IKEA Pty Ltd and the Shop, Distributive and Allied Employees Association (SDAEA), being a bargaining representative for the Agreement to advise that it had a number of concerns with aspects of the Agreement.

[3] Correspondence was received from the Applicant, with respect to the concerns raised by the Commission on 14, 23 and 30 August 2013.

Ordinary hours

[4] The Commission notes that the Agreement does not provide for a span of ordinary hours of work. The General Retail Industry Award 2010 (the Award), being the relevant modern award for the purpose of the better off overall test, at sub clause 27.2(a) provides for a span of ordinary hours of work. The Applicant advised the Commission that the employers trading hours are until 9:00pm on weekdays and 7:00pm on weekends but otherwise trades within the span of ordinary hours of work as per the Award.

[5] The Applicant submits that extended trading hours are anticipated. These extended trading hours are facilitated for 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.

Better off overall test

[6] The Commission notes that the Agreement provides a number of terms and conditions of employment that are less than those provided under the Award. These include lower penalty and overtime rates, allowances, no annual leave loading and a casual loading that is less than the Award.

[7] The Applicant provided a number of indicative rosters and calculations to demonstrate that employees receive a higher rate of pay than they would under the Award. I am satisfied that employees under the Agreement would be better off overall, with respect to the reduction in these entitlements.

Undertakings

Shift breaks

[8] With respect to Part 5 - Hours of work, in particular sub clause 5.1(f)(iii) of the Agreement, it states that a minimum break of 10 hours between the completion of work on one shift and the commencement of work on the next shift will be provided. 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] The Applicant has provided an undertaking that states breaks between shifts of less than 12 hours are rare at its stores.

Meal allowance

[10] The Commission notes that the Agreement does not provide a meal allowance to an employee who is required to work overtime after the employee’s ordinary time of ending work. The Award at sub clause 20.1(a) provides a meal allowance of $16.67 where an employee is required to work more than one hour of overtime after the employee’s ordinary time of ending work and where such overtime exceeds four hours a further meal allowance of $15.09 will be paid.

[11] The Applicant advised that the employer has not factored the Award overtime or meal allowance as it envisages little, if no, overtime will be worked under the Agreement.

[12] Upon request from the Commission, the Applicant has provided an undertaking that states an employee’s entitlement to a meal allowance for overtime would rarely occur.

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

Model Flexibility Term

[14] 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

[15] 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.

[16] I have sought the views of the bargaining representative, the SDAEA, in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertakings provided.

[17] The Agreement covers all of the employees working in the employer’s retail stores. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[18] 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.

[19] The SDAEA 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.

[20] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 12 September 2013. The nominal expiry date of the Agreement is 31 August 2017.

COMMISSIONER

Annexure A

Annexure B

Annexure C

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<Price code C, AE403777  PR541323>