Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Application for approval of the Luxottica Retail Enterprise Agreement 2025

• [1] Luxottica Retail Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Luxottica Retail Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

• [2] The Agreement will apply to employees who are covered by the General Retail Industry Award 2020 (the Award). The Shop, Distributive and Allied Employees Association (SDA) was a bargaining representative for the Agreement.

Regulation 2.06 Requirements

• [3] The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the Commission and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) and better off overall test (BOOT) issues

• [4] Although clause 6.3 of the Agreement refers to 'Union Matters', the Agreement does not contain a delegates' rights term, as required by s.205A(1) of the Act. If the Agreement is approved, the workplace delegates' rights term from the Award will be taken to be a term of the Agreement Pursuant to s.205A(2) of the Act.

• [5] Clause 5.4(c) of the Agreement states that the taking of annual leave is by mutual agreement and that it is expected that employees will use their leave within 12 months of accrual. This appears to be inconsistent with s.88 of the Act which does not provide for expectations around an employee taking annual leave.

• [6] The Employer submitted that the term 'expected' does not carry the same meaning as 'directed' and does not impose a binding requirement on employees to take leave. The Employer further submitted that it is not intended for this clause to operate in a manner that would require employees to take annual leave without mutual agreement. Additionally, the Employer referred to the NES precedence clause at clause 1.1(f) of the Agreement and submitted that, should the clause be interpreted as imposing a requirement to take leave, the NES precedence clause would override any inconsistency with the Act.

• [7] Clause 5.4(k)(ii) of the Agreement provides that 'Luxottica may reasonably require an employee to take annual leave, by giving at least 4 weeks' notice, where: (a) it is a part of a close-down of its operations; or (b) more than 8 weeks' leave is accrued.' Clause 28.6(b)(iii) of the Award provides that a direction by the employer under clause 28.6(a) 'must not require the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the direction is given.' These protections in in the Award are more beneficial compared to the Agreement.

• [8] The Employer provided an undertaking to address this issue.

• [9] Clause 3.3(e) of the Agreement provides that an employee will be paid for any additional travel time in excess of the travel time the employee usually incurs when travelling between their residence and their usual location. Clause 19.5(b) of the Award states that an employer must pay an employee at ordinary rate of pay (150% on a Sunday and Public Holiday) for time spent in excess of normal travel time when required to work at a place other than their usual place of work.

• [10] The Employer provided an undertaking to address this issue.

• [11] Clause 3.3(p) of the Agreement provides that an allowance is payable if an Associate Dispenser or Dispenser is responsible for laundering any uniform required to be worn. The Laundry Allowance is not applicable to Leading Dispensers, making it less beneficial than the Award for that classification.

• [12] The Employer provided an undertaking to address this issue.

• [13] Other allowances which are provided for in the Award but are not provided for in the Agreement are:

• [14] The Employer provided an undertaking to address this issue.

• [15] Clause 4.3(e)(iii) of the Agreement provides that rostering provisions are 'no more than 9 hours unless mutually agreed otherwise.' Clause 15.4 of the Award does not include the words 'unless mutually agreed otherwise' so employees are entitled to overtime if they work more than 9 hours except in the circumstances in clause 15.5 of the Award.

• [16] The Employer provided an undertaking to address this issue.

• [17] Clause 4.7(b) of the Agreement provides 'where there will not be a 12-hour break (10 hours where mutually agreed) before the commencement of the next shift the employee can elect to commence work at their rostered start time and be paid 200 percent of the minimum hourly rates until the employee has a break of 12 hours.' The provision does not include reference to clause 16.6(c) of the Award which provides 'The employee must not suffer any loss of pay for ordinary hours not worked during the period of a break required by clause 16.6.'

• [18] The Employer provided an undertaking to address this issue.

• [19] The Agreement does not contain equivalent provisions for the following:

a. Employee right to disconnect, provided for in clause 15A of the Award

b. Annual leave in advance provided for in clause 28.8 of the Award

• [20] The Employer provided an undertaking to address this issue.

• [21] Section 188 of the Act sets out the requirements for determining whether an agreement has been genuinely agreed to by employees. Section 188(1) requires the Commission to take into account the Statement of Principles made under s.188B in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. Section 188(4A) provides that the Commission cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the Commission is satisfied that the employer complied with s.180(5) in relation to the agreement.

Terms of the agreement must be explained to employees etc.

(5) The employer must take all reasonable steps to ensure that:

(a) the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement; and

(b) the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of those employees.

• [23] Paragraph 10 of the Statement of Principles provides:

Section 180(5) will generally not be satisfied if the employer makes an incorrect representation or misleads employees (by words, action or otherwise) about a significant term of the proposed enterprise agreement or its effect.

• [24] In the Form F17A lodged by the Employer, it referred to emails which it sent to employees on 15 and 20 January 2025 as meeting the requirements in s.180(5) of the Act by explaining how the terms and conditions of the proposed Agreement differ to the terms and conditions of the existing enterprise agreement. Voting for the Agreement commenced on 28 January 2025 and the Agreement was made on 3 February 2025,

• [25] The email dated 15 January 2025 contained the following sentence:

Leading Dispensers - Leading Dispensers will receive an increase in pay, given they will automatically move from Level 4 GRIA base pay to Level 6 GRIA base pay. Those paid on Leading Dispensers paid on Award rates will receive a 10% increase through this Agreement.

• [26] I note that 'GRIA' is a reference to the Award.

• [27] The current hourly rate of pay for Leading Dispensers is the Award rate of $27.17. If this rate of pay increases by 10%, it will be $29.89. However, the Agreement provides Leading Dispensers will receive an hourly rate of $28.76 which is an increase of 5.85%. The Employer's advice that 'those paid on Leading Dispensers paid on Award rates will receive a 10% increase through this Agreement' [emphasis added] is clearly an incorrect representation about the pay increase that employees are entitled to receive under the Agreement.

• [28] The Employer submitted that it was the intent of the statement in the email of 15 January 2025 to provide an indication to all employees that Leading Dispensers through 'the overall Agreement process will be receiving a 10% increase.' The Employer relied upon a subsequent email which it sent to employees on 29 January 2025 which provided answers to the most frequently asked questions received from employees. This email was sent on the second day of the voting period and stated:

In the communications it stated that Leading Dispensers paid on Award rates will receive a 10% increase through this Agreement. How has this been calculated? The 10% factors in the 3.5% that the Leading Dispensers already received from 1 July 2024 as well as the proposed EA 2025 increase from Level 4 to Level 6 and the 0.25% increase for year 1 (backdated to 1 July 2024). The intent is to show that from 1 July 2024 to when the Agreement gets voted on, the leading Dispensers are receiving an increase of 10%.

• [29] The increase that Leading Dispensers received on 1 July 2024 was in accordance with the increase in Award rates following the Annual Wage Review decision and not part of the agreement making process. The email which the Employer sent to employees on 29 January 2025 omitted this fact and was therefore misleading. Further, to the extent that the Employer claims that this issue was 'explained and clarified' in its email of 29 January 2025, this occurred after the vote commenced, therefore depriving the employees who had already cast their vote of the opportunity to receive this information before making a decision whether or not to approve the Agreement.

• [30] I note that the current rate of pay and the rate of pay under the Agreement for Leading Dispensers is listed at page 8 of a PowerPoint presentation which was emailed to employees on 20 January 2025, however I do not regard this as sufficient to overcome the misrepresentation that Leading Dispensers will receive a 10% pay increase. This is because there is no evidence before me which establishes that those employees who saw the misrepresentation in the email of 15 January 2025 subsequently saw the rates of pay in the PowerPoint presentation and formed the view that the information initially provided by the Employer was incorrect.

• [31] The email correspondence referenced above was about rates of pay for Leading Dispensers which is a significant term of the proposed enterprise agreement. The correspondence misled employees about the pay increase for Leading Dispenser by misrepresenting that Leading Dispensers paid on Award rates will receive a 10% increase through this Agreement' and failing to communicate that the 3.5% pay increase on 1 July 2024 was required by the Annual Wage Review and not part of the agreement making process. In making these misrepresentations, I find that the Employer has engaged in the conduct described in Paragraph 10 of the Statement of Principles and that it has not complied with s.180(5) of the Act in relation to the Agreement. As such, I am not satisfied that there was genuine agreement in relation to the Agreement under s.188(4A).

• [32] If I have a concern that an agreement does not meet the requirements set out in ss.186 and 187 of the Act, I may approve the agreement under s.186 if I am satisfied that an undertaking under s.190(3) meets the concern. Section 190(3) permits me to accept a written undertaking from one or more employers covered by the agreement if I am satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

• [33] I must not accept an undertaking under s.190(3) unless I have sought the views of each person who the Commission knows is a bargaining representative for the agreement.

• [34] I note that the Employer has provided draft undertakings in relation to the BOOT issues raised and that the SDA has not raised any objections to the proposed undertakings. These undertakings meet the Commission's concerns about the Agreement not satisfying the BOOT.

• [35] I have not formed a view about whether the Employer's non-compliance with s.180(5) of the Act with respect to the Agreement can be addressed by an undertaking, however I note that it is permissible to accept an undertaking under s.190 of the Act in order to overcome an employer's failure to comply with s.180(5).[1]

• [36] I believe that it is appropriate to invite the Employer to provide further undertakings pursuant to s.190 of the Act and for the bargaining representatives to provide their views about any proposed undertakings before making a final decision in relation to the matter.

• [37] In the circumstances, I make the following directions:

1. If the Employer wishes to provide any further undertakings to address its non-compliance with s.180(5)(a) of the Act, it is required to send the proposed undertakings to the Commission and all Bargaining Representatives by email by 4:00pm AEST on Friday 11 April 2025.

1. If the Bargaining Representatives wish to provide any views in relation to any proposed undertakings, they are required to send these views to the Commission and the Employer by email by 4:00pm AEST on Tuesday 15 April 2025.

• [38] I will issue my final decision in the matter following receipt of any further material provided by the parties in accordance with these directions.

[1] Construction, Forestry, Maritime, Mining and Energy Union v Karijini Rail Pty Ltd [2020] FWCFB 958, [103]-[108]

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