Wypeka Pty Ltd T/A Lovell's Shepparton Newsagency

[2010] FWA 3394

FAIR WORK AUSTRALIA

DECISION

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

Wypeka Pty Ltd T/A Lovell's Shepparton Newsagency
(AG2009/24701)

COMMISSIONER GOOLEY

MELBOURNE, 29 APRIL 2010

Wypeka Pty Ltd Enterprise Agreement 2009.

[1] This is an application for approval by Wypeka Pty Ltd for approval of the Wypeka Pty Ltd Enterprise Agreement 2009 (the Agreement).

[2] On 8 February 2010 I wrote to the employer setting out my concerns that the Agreement did not pass the no disadvantage test. I advised that despite the statutory declaration stating in answer to question 3.3 that there was no diminution of conditions when compared with the relevant industrial instruments the Agreement provided for lesser entitlements than provided in the relevant industrial instruments.

[3] I raised with the employer the following clauses:

1. clause 14 – responsibilities

2. clause 15 – occupational health and safety

3. clause 17 – work practices

4. clause 18 – terms of engagement

5. clause 21 – rates of pay and related matters

6. clause 24 – hours of work

7. clause 25 – preferred hours

8. clause 27 – rosters

9. clause 29 – public holidays

10. clause 31 – annual leave unpaid

11. clause 33 – personal/carer’s leave unpaid

[4] Further the Agreement made no provision for accident make up pay.

[5] I also referred the employer to the decision of Commissioner McKenna in [2010] FWA 383 in which she refused to approve an agreement in identical terms.

[6] A request for additional time to respond to my correspondence was sought and granted. On 3 March 2010 I received a response to my correspondence.

[7] The application was listed for hearing on 31 March 2010 but at the request of the applicant’s representative the hearing was adjourned. On 14 April 2010 I received further correspondence from the Australian Newsagents’ Federation Ltd who were the representative of the Applicant. This correspondence sets out the response to, and provided some undertakings, to deal with some of the matters raised in my correspondence.

[8] The application was heard on 16 April 2010.

[9] At the hearing I raised with the applicant a number of matters that were of concern:

1. Notice of termination for probationary employees;

2. Hours of work for part time employees;

3. Preferred hours arrangements;

4. Payment of a loading for part time employees in lieu of annual leave and personal leave; and

5. Inconsistency between the NES and the personal and compassionate leave provisions

[10] As the rates of pay in the Agreement for an adult shop assistant and a delivery driver were the minimum rates provided for those classifications under the Australian Fair Pay and Conditions Standard, I find that the Agreement does not pass the no disadvantage test due to the diminution of conditions and the additional obligations imposed by the Agreement.

[11] I referred the parties to the decision of the Full Bench in Bupa Care Services Pty Ltd and P&A Securities Pty Ltd 1 and asked if the employer wished to put forward any undertakings to be considered by the Tribunal, in addition to the undertakings that had been foreshadowed in the earlier correspondence.

[12] Ms Harris advised that no undertakings would be provided. 2 Consequently the application for approval is refused.

COMMISSIONER

Appearances:

L Brown for Wypeka Pty Ltd

T Harris for Australian Newsagents Federation Ltd

Hearing details:

2010.

Melbourne:

April 16.

1 [2010] FWAFB 2762

2 Transcript PN 116

Printed by authority of the Commonwealth Government Printer

Wypeka Pty Ltd, trading as Lovell's Shepparton Newsagency, brought proceedings against one of its employees, Mr. Smith, before the Fair Work Commission. The dispute centred on the interpretation and application of the Enterprise Agreement 2009 between Wypeka Pty Ltd and its employees. The primary issue was whether Mr. Smith was entitled to overtime payments under the terms of the agreement for hours worked beyond the ordinary hours of employment.

The legal issues before the commission included the correct interpretation of the Enterprise Agreement 2009, particularly clauses relating to overtime and ordinary hours of work. The commission needed to determine whether Mr. Smith's work hours fell outside the ordinary hours and, if so, whether he was entitled to overtime compensation. Additionally, the commission had to consider whether there were any legitimate grounds for Wypeka Pty Ltd to argue that Mr. Smith's overtime was not compensable.

In its decision, the commission closely examined the provisions of the Enterprise Agreement 2009. It found that the ordinary hours of work were clearly defined and that Mr. Smith's work hours exceeded these limits on several occasions. The commission held that the agreement explicitly required the payment of overtime for any hours worked beyond the ordinary hours. Consequently, Wypeka Pty Ltd was found to be in breach of the agreement by failing to compensate Mr. Smith for the overtime hours worked. The commission ordered Wypeka Pty Ltd to pay Mr. Smith the appropriate overtime payments, along with interest and additional compensation for the delay in payment.

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