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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
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DECISION
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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
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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
WORK COM THE PAIR
ASSION THE SEAL
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Annexure A
Printed by authority of the Commonwealth Government Printer
Price code C, AE409311 PR553615
Lovisa Lovisa Pty Ltd ABN 62 120 675 890 41-45 Camberwell Road Hawthorn East VIC 3123 03 9831 1800 03 9804 0060 e info@lovisa.com.au lovisa.com.au 23 July 2014 Chambers of Commissioner Bull Fair Work Commission Level 8, Tower Terrace 80 William Street East Sydney, NSW 2011 Dear Commission, Application for Approval of Lovisa Enterprise Agreement 2014 - AG2014/6341 Lovisa gives the following written undertakings with regards to the Lovisa Enterprise Agreement 2014: 1. Part 4 - Hours of Work, the ordinary span of hours will be those as provided at clause 27.2(a) of the General Retail Industry Award. 2. Part 4 - Hours of Work, and in particular, sub-clause 4.3(g), Lovisa has advised 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. 3. Clause 4.6 - Overtime, Lovisa has advised the Commission that overtime is very rarely worked. Yours Sincerely Damian Babic Chief Operating Officer PRIVATE AND CONFIDENTIAL
