Fair Work Australia|2010-05-20

Triple Double Pty Ltd t/as The Athlete's Foot Horsham; MT Bowles Pty Ltd t/as The Athlete's Foot Shepparton; Shoeology Pty Ltd t/as The Athlete's Foot Echuca; Fitting Fanatics Pty Ltd t/as The Athlete's Foot Plenty Valley, Ivanhoe and Northland; Parker Georgious Pty Ltd t/as The Athlete's Foot Greensborough; Araje Pty Ltd t/as The Athlete's Foot Ballarat [2010] FWA 2830 (20 May 2010)

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

Triple Double Pty Ltd T/A The Athlete's Foot Horsham

MT Bowles Pty Ltd T/A The Athlete's Foot Shepparton

Shoeology Pty Ltd T/A The Athlete's Foot Echuca

Fitting Fanatics Pty Ltd T/A The Athlete's Foot Plenty Valley, Ivanhoe and Northland

Parker Georgious Pty Ltd T/A The Athlete's Foot Greensborough

Applications to approve single enterprise agreements - applications refused - procedural requirements; no disadvantage test.

[1] These are all applications by franchisees of The Athletes Foot. In each case the contents of the agreement is in almost identical terms with the exception of the rates contained in the schedule which deals with rates of pay.

[2] This application is made by one of the two companies that jointly operate both this business and the business trading as Athletes Foot Ballarat. Form F17 statutory declarations were made by Mr Chapman on behalf of Araje Pty Ltd and Mr Tudorovic on behalf of Triple Double Pty Ltd.

[3] The F17 declarations and the statement of Mr Chapman, who attended the hearing, indicate that a meeting of all staff was held on 18 November 2009 at which employees were given:

A document entitled 'Frequently Asked Questions'.

[4] At the meeting which was conducted by Mr Tudorovic the agreement was discussed clause by clause; Ms Grainger was elected to be the bargaining representative; and it was agreed that a vote would be held on 16 December 2009. All seven employees to be covered by the agreement participated in the vote. Six of the employees are casuals, three are under the age of 21 and none are from non-English speaking backgrounds.

[5] The rates of pay for employees covered by the agreement are contained in Schedule 1 to the Agreement. The only classification is that of 'retail assistant'. The material before me indicates that Mr Tudorovic manages the business himself and that all of the other employees are classified as retail assistants.

[6] An issue which has concerned me is that the copy of the agreement provided to the employees is marked on the cover 'strictly confidential'. Further, clause 32 states, 'The contents of this Agreement and the details of employee remuneration, are strictly confidential'. Three of these employees are young persons. They would not have been able to seek any external advice about the content of the agreement on the basis that the contents were 'strictly confidential'.

[7] The contents of the agreement were explained by Mr Tudorovic. His statutory declaration in response to question 2.14, 'Please identify any terms of the agreement that are detrimental to an employee in any respect when compared to the NES' is, 'None'. This is clearly not the case in relation to clause 12 with respect to notice of termination and clauses 22(g) and (h) with respect to section 120 of the Act.

[8] Further in relation to question 3.3, 'Does the agreement contain any terms or conditions of employment that are less beneficial than any of the terms and conditions in the reference instruments identified in questions 3.1 or 3.2?', the answer given is, 'No'. Again Fair Work Australia has identified a number of clauses which are less beneficial to employees and identified award clauses for which no equivalent benefit exists under the agreement.

[9] I therefore have some difficulty in finding that these employees were provided with the information necessary to make an informed decision to be bound by this agreement. Section 180(5) requires that the employer must take all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the relevant employees. As Mr Tudorovic, in some respects at least appears to have been unaware of the effect of the agreement on benefits otherwise available under the award, it seems that he could not have taken all reasonable steps to explain them to the relevant employees.

[10] The agreement makes reference at various places to the application of policies e.g. clause 19.1 - Annual leave, refers to such leave being taken, 'in accordance with Athletes Foot Horsham policy'.

Athletes Foot Horsham has various policies for the safe and effective operation of its business and the welfare of its Employees. These policies will be advised, or made available to Employees:

(b) in the induction program to new Employees; and

(c) in the event of any changes to a previously advised policy.

Employees are expected to comply with these policies as amended and updated from time to time.

These policies include provisions relation (sic) to store conduct and presentation. These policies also include provisions relating to discrimination (on grounds of sex, race, colour, national origin, age, religion, sexual preference, or physical or mental handicap) sexual harassment, or 'bullying' behaviour - none of which will be tolerated.

A breach of the Athletes Foot Horsham policies may render an Employee liable for disciplinary action, including dismissal from employment.

[12] None of these policies were distributed to employees 'together with a copy of the agreement'. In the hearing Mr Chapman indicated that there were no written policies.

[13] In correspondence with the employer's representative and in a hearing on 10 May 2010, Fair Work Australia raised a number of issues concerning the content of the agreement. Those matters which relate directly to the 'no disadvantage test' include the following.

(i) Clause 8.2 of the agreement states that 'the employee is employed under the status and classification stated on the employee's signature page'. It was explained that this referred to 'a separate letter of offer distributed to each employee upon commencement of that employee's employment' as set out in clause 13 - Remuneration. There is however nothing to state that such a letter deals with the matters contained in clause 10.3 of the Award with respect to part-time employees. I note that while the agreement provides for such employment, the Form F17 indicates that currently there are no part-time employees.

(ii) Clause 11 of the agreement provides for ordinary working hours to be averaged over a 12 month period. It further states that, 'employees remuneration compensates for all hours of work including additional hours and work on such days that may otherwise entitle an employee to penalty rates or allowances'.

Clause 22 of the award provides for ordinary hours of work to be an average of 38 per week averaged over a four-week cycle. Clause 23 provides for those hours to be worked on not more than five days in any week with a maximum number of hours on any day, 'without the payment of overtime' to not exceed nine hours except on one day in any week when it shall not exceed 10.5 hours.

The award also provides for full-time and part-time employees to be paid a loading of 25% for work after 6.00 p.m. and for all work on a Saturday and to be paid double time for work on a Sunday. Casual employees are also entitled to be paid double time on a Sunday.

Under clause 29 of the award overtime is payable at the rate of time and a half for the first three hours and double time thereafter. All overtime outside of the ordinary hours of work is payable at double time. Time in lieu must equate to the overtime rate.

(iii) Clause 19.2 provides in relation to personal (sick)/carers leave:

For absences of more than two (2) consecutive days Athletes Foot Horsham requires a certificate from a registered medical practitioner substantiating such absences. Employees will be required to provide a medical certificate for single day absences in cases where absences are adjacent to leave, public holidays, or rostered days off. An Employee may provide a statutory declaration in lieu of a medical certificate.

Athletes Foot Horsham reserves the right to deny applications for paid personal (sick)/carer's leave and/or to request medical certificates to support applications for single day absences where excessive leave has been taken or where there is cause to doubt the legitimacy of the application. Athletes Foot Horsham also reserves the right to direct an employee to attend a medical examination arranged by Athletes Foot Horsham in cases of excessive sick leave or where there is concern for the health and safety of the individual or others in the workplace.

The only provisions in the award which relate to this are contained in clause 33.1.4:

33.1.4 Provided that any employee shall be entitled to sick pay if such employee produces or forwards within 48 hours of the commencement of such absence evidence to the employer that his or her non-attendance was due to personal ill health or accident necessitating such absence, and if requested the employee shall sign a Statutory Declaration as to the reason for such absence where more than one single day absence takes place in each sick leave year, and further provided that where any absence exceeds three consecutive days the employer may require the production of a medical certificate of a legally qualified medical practitioner.

(iv) Clause 20 - Public holidays, is ambiguous. It states, 'employees will be paid double time and a half of the Ordinary Rate of Pay or Casual Rate of Pay (whichever is applicable) for all hours worked' but later states, 'This clause does not apply to casual employees who will be paid at the Casual Rate of Pay'.

Clause 38 of the award provides for an employee who works on a public holiday to be paid at the rate of double time and a half for all hours worked with a minimum payment of three hours.

(v) Clause 25 places certain uniform requirements on an employee. While clause 20 of the award provides for reimbursement of the cost of any special clothing an employee is required to wear and an allowance for laundering such clothing, the agreement imposes disciplinary action on an employee who fails to comply with dress standards.

(vi) The rate for the travel allowance in Schedule 2 varies from 63 cents to 75 cents per kilometre. The award provides for a rate of 'not less than 73c per kilometre' in clause 20.8.

(vii) Schedule 1 provides for a Casual Rate of Pay for retail assistants (equivalent to a Retail Worker Grade 1 under the award) 'inclusive of all penalties, loadings and other allowances except as provided for by this Agreement'.

It also provides for an 'Ordinary Rate of Pay' which applies to all permanent employees (excluding salaried employees) inclusive of all penalties, loadings and other allowances, except as provided for by this agreement. It specifies one classification of retail assistant.

The rate of pay for a casual employee under the agreement exceeds the 25% plus 1/12 loading applicable to ordinary hours under the award. It is intended however to also compensate employees for any overtime worked and for any work on a Sunday which would otherwise be paid at double time. It appears that the employer does not trade on Sundays.

The rate for 'permanent employees' is intended to compensate them for all ordinary hours, inclusive of the 25% loading for work after 6.00 p.m., the 25% loading for Saturday work and the double time for work on a Sunday as well as for all overtime worked. In this case it appears that no work is performed after 6.00 p.m.

The agreement in clause 3 states that it applies to, 'all current and future permanent full-time, permanent part-time and casual employees'. Schedule 1 excludes from the rates provided 'salary employees'. 'Salary' is defined in clause 2 as 'the amount shown as salary in the employee's remuneration summary'. As no information is provided on what 'salary' is paid it is not possible to assess if this would pass the no disadvantage test.

(viii) The agreement makes no provision for accident make-up pay which is found in clause 39 of the award.

[14] The employer's representative offered to give the following undertakings:

(i) To remove the words 'which can be averaged over a 12 month period' from clause 11 - Hours.

(ii) To apply the provisions of the National Employment Standards where they exceed those in clause 12 - Probationary employees.

(iii) Not to rely on the requirement for certification to be provided for single day absences adjacent to leave or rostered days off being taken in clause 19.2.

(iv) To remove the words 'for any or no reason' from clause 21 - Termination, in relation to termination of casual employment.

(v) That clause 22(g) and (h) are subject to an application being made to Fair Work Australia under section 120.

(vi) That any unilateral variation to its policies will not at any time traverse the provisions of the Award to the extent that it disadvantages an employee.

(vii) Not to rely on paragraph 1 of clause 32 with respect to confidentiality and to remove the words 'strictly confidential' from the cover of the agreement.

(viii) To substitute the award provisions with respect to travel (clause 20.5 to 20.9 of the award) for the provisions in relation to travel allowance in Schedule 2.

[15] In correspondence following the hearing on 10 May 2010 the employer also undertook to:

Not rely on the second last paragraph of clause 19.2 of the agreement.

Not to rely on the last paragraph of clause 20 in relation to public holidays.

Make an application to Fair Work Australia under Part 2-2, Division 4 of the Fair Work Act in the event that clause 22(g) or (h) apply.

To pay accident make-up pay in accordance with the provision of the relevant award.

To undertake an annual reconciliation of the amount that employees would have earned under the agreement and the amount that employees would have earned under the award.

[16] In relation to the rates of pay the applicant submitted that the rosters were used as a tool to calculate the rates in Schedule 1. The pattern of hours was used to calculate what each employee would otherwise have earned under the award inclusive of overtime, loadings and other penalties. This was then averaged to calculate a single ordinary rate and loaded to reflect a casual rate of pay.

[17] The applicant submitted that the test which applied to the no disadvantage test was as set out in section 346D of the Workplace Relations Act 1996 (Cth) i.e. 'that an agreement does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees whose employment is subject to the agreement' (my emphasis). The applicant submits that the application of the no disadvantage test is a collective test rather than an individual one.

[18] The issue of the application of the no disadvantage test is dealt with later in this decision.

[19] This is an application by M T Bowles Pty Ltd, trading as the Athletes Foot, Shepparton for approval of the Athletes Foot Shepparton Employee Enterprise Agreement 2009. The Form F17 has been lodged by Mr Bower or Bowler (it is unclear) as director of the employing company. Mr Bowler also appears to be a director of Shoeology Pty Ltd trading as The Athletes Foot, Echuca for which an application has been made in AG2009/24307.

[20] It is unclear before whom the declaration was made as the full name, qualification and address of the person is not provided. The signature however appears to be the same as that on a Form F18 declaration made by a Ms Allie Prior, the Assistant Manager of the Shepparton store. If this is the case then the declaration is not validly made. The declaration also seems to have been written by more than one person.

[21] The F17 states that the agreement was made on 17 December 2009. The answer to question 2.3 states that, 'All employees had access to the written text of the agreement and was handed out to them'. It does not state when this occurred. Fair Work Australia was subsequently informed that this was 25 November 2009. In relation to question 2.4 the employer states, 'All employees were verbally told of the time and place'. It makes no statement about when this occurred or what information, if any, was given about the method of voting. Fair Work Australia was subsequently told this was 26 November 2009. In response to question 2.5 the employer states, 'The agreement was explained to them at a staff meeting and questions were asked and answered'. It does not state when this occurred or who answered the questions. Fair Work Australia was subsequently told that this was also on 26 November 2009.

[22] The employees were first requested by the employer to approve the agreement by voting for it on 11 November 2009 which is also the date on which they were given the notice of employee representational rights.

[23] There are seven employees covered by the agreement of whom five are casual and three are aged under 21. There are no employees from a non-English speaking background. The agreement is stated to cover all employees of the employer.

[24] In response to question 2.14 the employer has written, 'n/a'. In relation to question 3.3 he has responded, 'No' and in relation to question 3.4 he has responded, 'n/a'.

[25] In response to a request to produce the policies provided to employees during the access period a document entitled, 'The Athletes Foot, Policy Manual' was produced. This document states that it was, 'updated & developed by: The Athletes Foot: 5-May-10'. It could not therefore be the document provided to employees during the access period prior to making the agreement in December 2009. It was later acknowledged that this document was not given to employees during the access period but was designed as an induction document.

[26] The failure to provide the policies referred to in clause 28, in my view, amounts to a failure to comply with the provisions of section 180(2)(a)(ii).

[27] The agreement has not been signed by either the employer or an employee representative.

[28] The rosters provided indicate that no employees work on a Sunday and that there is no trading after 6.00 p.m.

[29] The same issues arise in relation to the contents of the agreement as apply to AG2009/24055.

[30] Schedule 1 refers, in addition to the classification of retail assistant, to the classifications of 'assistant manager' and 'manager'. The employer has now provided information that these are both equivalent to a 'Clothing and Footwear Manager (b)' under the award. As they are in charge of more than one employee the correct comparator is 'Clothing and Footwear Shops Manager (a)'.

[31] The business does not appear to trade on a Sunday or after 6.00 p.m. on any trading day.

[32] This is an application by Fitting Fanatics Pty Ltd for approval of the Athletes Foot Plenty Valley, Ivanhoe and Northland Employee Enterprise Agreement 2009. The F17 declaration has been made by Mr Andrew Parker, director of the employer company.

[33] The F17 declaration states that the agreement was made on '17/12/09'. The answer given to question 2.3 is 'employees provided by hand a copy'. It does not specify how or when this occurred. The date subsequently given was 25 November 2009. The answer to question 2.4 is 'verbally at training - staff told details of vote - flier put up in store to notify of date, etc'. It does not specify the dates on which these events occurred. The staff training was later said to have occurred on 1 December 2009. The answer to 2.5 is, 'At staff meeting, went through agreement by point, allowed questions from staff and general open discussion re details etc'. Again it is not stated when these meeting occurred or who conducted them. This was later stated to be 10 December 2009.

All employees have been given notice of their representational rights on 1/12/09. Prior to this vote taking place, all employees have been given or have had reasonable access to a copy of the agreement together with any other material incorporated by reference in the agreement.

[35] It goes on to give details of voting to take place by way of a ballot on '17/12/09' at the workplace. It then states, 'If you are not able to attend on the day of the vote, please complete the attached absentee vote and return it to Andrew Parker by not later than 17/12/09 in order that your vote is counted'.

[36] On the basis of this notice the voting took place less than 21 days after the notice of representational rights was given and for that reason alone could not be approved.

[37] The answer given to question 2.6 is '10/12/09' and to question 2.7 is '25/11/09'. The number of employees covered by the agreement is 20. Of these 14 are casual and 10 are under 21 years of age. There are no employees from a non-English speaking background.

[38] The answer given to question 2.14 is 'None' and to question 3.3 is 'no'. The answer to question 3.4 is 'N/A'.

[39] In response to a request for the policies provided to employees during the access period Fair Work Australia was given the same documents that were provided in response to the same request in AG2009/24268. It was later clarified that these documents were part of the staff induction programme and not given to employees during the access period

[40] 'Staff Roster' documents were provided for each of the three stores. They do not specify the period to which they relate, or the classifications of the employees. In each case two (or three) employees are designated as 'full time salary earner' and the others as casual 1 to 4 (or 5) 'hourly rate'. It appears that the stores trade on a Sunday but that only employees designated as 'full-time salary earner' work on Sundays.

[41] In clarifying the information provided the employer stated that the retail assistant under the agreement was equivalent to a Retail Worker Grade 1 under the award. An assistant manager was also equivalent to a Retail Worker Grade 1 and a manager to a 'General Shops manager (b)' under the award. This does not appear to be the correct comparison and should be 'Clothing and Footwear Shops Manager (a)'. The 'full-time salary earners' in the agreement are intended to be covered by the agreement and are classified as retail assistants and paid at the ordinary rate of pay.

[42] The issues in relation to the content of the Agreement are the same as the other applications.

[43] This is an application by Parker Georgiou Pty Ltd trading as The Athletes Foot Greensborough for approval of the Athletes Foot Greensborough Enterprise Agreement. The F17 declaration has been made by Mr Andrew Parker who is also the director of Fitting Fanatics Pty Ltd, the applicant in AG2009/24267.

[44] The F17 declaration states that the Agreement was made on '17/12/09'. The answer given to question 2.3 is 'employees provided a copy by hand'. It does not specify however when this occurred. This was later stated to be 25 November 2009. The answer to question 2.4 is 'verbally at staff training - staff told details of vote - flier put up in store to notify of date, etc'. It does not specify when staff were told or when the flyer was put up in the store. The staff training was later stated to have been on 1 December 2009. The answer given to question 2.5 is 'at staff meeting, discussed agreement by point, allowed questions from staff and general open discussion re details, etc'. Again the date of this meeting is not specified nor who conducted the meeting. It was later stated to be 10 December 2009.

[46] It goes on to give details of voting to take place by way of a ballot on '17/12/09' at the workplace. It then states, 'If you are not able to attend on the day of the vote, please complete the attached absentee vote and return it to Andrew Parker by not later than 17/12/09 in order that your vote is counted'.

[47] On the basis of this notice the voting took place less than 21 days after the notice of representational rights was given and for that reason alone could not be approved.

[48] The answer given to question 2.6 is '10/12/09' and the answer to question 2.7 is '25/11/09'. The number of employees covered by the agreement is 10 of whom six are casual, three are under the age of 21 years of age and none are from a non-English speaking background.

[49] The answer given to question 2.14 is 'none' and the answer to question 3.3 is 'no'. The answer to question 3.4 is 'N/A'.

[50] In response to a request for the policies provided to employees during the access period a series of documents were provided. The first entitled, 'Welcome to the team' appears to be an induction document. The others appear to be safety checklists and a policy on 'personal presentation & behaviour'. These would appear to be policies given to employees on the commencement of their employment. This was later confirmed to be the case. The documents were not distributed at the time the agreement was circulated.

[51] In clarifying the information provided the employer stated that the retail assistant under the agreement was equivalent to a Retail Worker Grade 1 under the award. An assistant manager was also equivalent to a Retail Worker Grade 1 and a manager to a 'General Shops manager (b)' under the award. This does not appear to be the correct comparison and should be 'Clothing and Footwear Shops Manager (a)'. The 'full-time salary earners' in the agreement are intended to be covered by the agreement and are classified as retail assistants and paid at the ordinary rate of pay.

[52] This is an application by Shoeology Pty Ltd t/as The Athletes Foot Echuca. The contact person appears to be Mr Bowler and he is named as the deponent in the Form F17. The signature of the deponent in this matter however appears to be different to the signature on the F17 lodged in relation to AG2009/24264 nor is it the same signature that appears as the employer's signature on the agreement.

[53] The F17 states that the Agreement was made on '18-12-09'. The answer to question 2.3 states 'First through e-mail then hard copy was given to each staff member'. It does not state when either of these events occurred. This was late said to be 25 November 2009. The answer to question 2.4 states, 'Through staff training sessions' but does not state what information was provided to employees and when it was provided. The training sessions were later said to have occurred on 26 November 2009. The answer to question 2.5 states, 'Staff training and question and answer session with myself and the rep'. It does not state when this occurred. It appears however to have been the same training session as given in the answer to question 2.4. It is assumed that the 'rep' is Ms Masterton, the retail assistant who signed a form F18 before a Lisa Mitchell whose qualifications to witness a statutory declaration are not disclosed.

[54] The answer given to question 2.6 is '11-12-09' and to question 2.7 is '11 November 09'. The employer states that the agreement covers five employees. These are all female but no other details are given.

[55] The answer to question 2.14 is 'N/A' and to question 3.3 is 'no'. The response to question 3.4 is 'N/A'.

[56] In response to a request to produce the policies provided to employees during the access period the same copy of 'The Athletes Foot Policy Manual', previously referred to in relation to AG2009/24264 was provided. This document was not distributed to employees during the access period. The failure to provide the policies referred to in clause 28, in my view amounts to a failure to comply with section 180(2)(a)(ii).

[57] The further information provided states that a retail assistant under the schedule is equivalent to a Retail Worker Grade 1 and both an Assistant Manager and a Manager are equivalent to a Clothing and Footwear Shops Manager (b). The rosters show no Sunday trading and no trading after 6.00 p.m.

[58] The content issues in relation to this application are the same as already indicated in relation to the other applications.

[59] This application was made by Araje Pty Ltd which is one of the two companies operating as the Athlete's Foot Ballarat. The two companies also operate as the Athlete's Foot Horsham. Form F17 declarations were made by Mr Chapman, director of Araje Pty Ltd and Mr Tudorovic, director of Triple Double Pty Ltd the other company involved in the venture. Mr Chapman also attended the hearing on 10 May 2010.

[60] The F17 declarations and the statements of Mr Chapman indicate that a meeting of employees was held on 24 November 2009 at which the employees were given :

A document entitled 'Frequently Asked Questions'.

[61] Mr Chapman stated that Mr Tudorovic, who attended the meeting, informed him that the agreement was discussed clause by clause and questions about it were answered. The employees elected Bonita Stevens as their bargaining representative and it was agreed that a vote on the agreement would be held on 18 December 2009. On that day employees handed in a slip that indicated if they were in favour of the agreement.

[62] The agreement is stated to cover 10 employees, all of whom voted in the ballot. Eight of the employees are casuals and none are under the age of 21. None is of a non-English speaking background. Schedule 1 of the agreement sets out the rates of pay for employees covered by the Agreement. There is only one classification, that of Retail Assistant, which is the equivalent of Retail Worker Grade 1 under the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 2000.

[63] The sample roster provided shows two employees as working full-time (which is consistent with the statutory declarations). These are Ms Chapman and Ms Stevens. Mr Chapman stated that Ms Chapman was the manager of the Ballarat store and was not covered by the agreement. Mr Chapman stated that Ms Stevens was the assistant manager who was also on a salary. Her other conditions were as per the agreement but her salary was worked out separately. It appears that both Ms Chapman and Ms Stevens voted on the agreement.

[64] While various sections of this agreement refer to Athlete's Foot Ballarat policies - e.g. clause 14, clause 19 and clause 28 - it appears that there are no such written policies and none were provided to employees during the access period referred to in section 180(2).

[65] I have two concerns with the procedural aspects of this agreement. First, it appears that Ms Chapman, the store manager participated in the making of the agreement, although it was not intended that she would be covered by it. This appears to me to be contrary to the requirements of section 182(1) that an agreement be made between the employer and the employees who will be covered by the proposed agreement.

[66] The agreement states in clause 3 that it applies to 'all current and future permanent full-time, permanent part-time and casual employees of Athletes Foot Ballarat'. Clause 6 makes it clear that the intention is that the agreement should wholly cover the relationship between the parties and will exclude all awards that might ordinarily apply but for this agreement.

[67] Clause 13 which deals with remuneration refers to an employee's 'salary, or ordinary rate of pay including any commission, bonus or other entitlement' being communicated to them in a separate letter. Schedule 1 sets out the casual rate of pay for retail assistants and the ordinary rates of pay for 'permanent employees (excluding salary employees)' employed in the retail assistant classification.

[68] The agreement provides no rate of pay for a store manager and gives no indication of the rates to be paid to 'salaried employees'. This is consistent with Mr Chapman's statement that, despite the content of clause 3, it was not intended that Ms Chapman should be covered by the agreement. It is inconsistent however with his response to question 2.15, 'Does the agreement cover all employees of the employer or employers?' to which the answer given is 'Yes'.

[69] Second, as with other agreements in this matter, the answers to question 2.14 and 3.3 suggest that there are no provisions in the agreement detrimental to employees in any respect when compared with the National Employment Standards and that there are no terms or conditions that are less beneficial than the award. Neither of these statements is correct. I note further that the 'Frequently Asked Questions' does not deal with the content of the agreement but with what an enterprise agreement is and how it differs from an AWA or ITEA.

[70] Like other agreements in this matter, this agreement also has 'strictly confidential' written on the front cover and clause 32 states that the content of the agreement is 'strictly confidential'. Given that the employer appears to have been unaware of any terms or conditions that are less beneficial than the award or the National Employment Standards it is therefore unlikely that the employees would have been aware of any effects of making the agreement which might result in less beneficial outcomes for them than remaining under the award.

[71] The content issues in relation to this agreement are similar to those raised in relation to AG2009/24292 and the same undertakings were proposed to be given by the employer. It is significant, in relation to the wage rates, that the store does not operate on a Sunday and the rates given, together with the rosters provided, would suggest that in the absence of any significant overtime being worked by employees the rates of pay would comply with the no disadvantage test.

[72] On the material before me I am not satisfied that the application complies with the requirements of section 182(1) in that an employee, not covered by the agreement, participated in the making of the agreement. Further, I am not satisfied that the effect of the terms of the agreement was explained to the employees and therefore the requirements of section 180(5)(a) were not met.

[73] For these reasons the agreement cannot be approved.

[74] All of these applications suffer from procedural defects which, in my view, would prevent them from being approved. In each case the employer has stated that there are no terms of the agreement that are detrimental to an employee in any respect when compared to the NES and that the Agreement contains no terms and conditions of employment that are less beneficial than any terms and conditions contained in the relevant reference instrument. It is clear that neither of these statements is correct. The employer could therefore not have taken all reasonable steps to explain the effect of the agreement to the employees if he himself was not aware of that effect.

[75] Each of the agreements contains a clause which refers to the policies of the employer and imposes a requirement on employees to comply with such policies. In no case were these policies made available to the employees during the access period. In two cases they did not even exist and in two other cases the relevant policies appear to post-date the making of the agreement.

[76] In relation to the no disadvantage test the applicants have submitted that the test to be applied is a collective rather than an individual one. I do not accept that this is the case. If the test was simply an averaging exercise then it is inevitable that some employees will be worse off and some will be better off.

[77] This appears to me to defeat the purpose of the test. It does not require that the 'majority of employees' or 'the average employee' not be disadvantaged but that 'the employees' not be disadvantaged. I am of the view that 'the employees' in this context means 'each of the employees'.

[78] The agreements in relation to rates of pay state that the 'ordinary rate of pay' does not apply to 'salaried employees'. With the exception of AG2009/24685, salaried employees are said to be covered by the agreement. No information is given however on their rate of pay. It is therefore not possible to determine if they are disadvantaged or not by the terms of an agreement which excludes them from the rates set out in the award but does not specify what they should be paid. While the submission is made that clause 13 provides for a guarantee that employees will be paid no less than the minimum wage set by Fair Work Australia, that wage relates only to ordinary hours of work and does not incorporate the penalties, loadings and other allowances that are provided for by the award.

[79] I therefore cannot be satisfied that these agreements would pass the no disadvantage test.

[80] The applicants have also proposed a number of undertakings intended to rectify the shortcomings in these agreements.

[81] While those undertakings go some way to ameliorating the detrimental effects of the agreement they do not, in my view, do so to the extent necessary to satisfy the no disadvantage test and may also result in substantial changes to the agreement.

[82] For these reasons the applications in these matters are refused.

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At a glance

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Decision date

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Judgment (132 paragraphs)

Legislation Cited (2)