[2014] fwca 3554 - sda nationalsda.org.au/download/enterprise-agreements/noni-b-enterprise... ·...

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

Work Relations(AG2014/5848)

NONI B ENTERPRISE AGREEMENT 2014

Retail industry

COMMISSIONER BULL SYDNEY, 6 JUNE 2014

Application for approval of the Noni B Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Noni B 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 application was lodged with the Fair Work Commission (the Commission) on 30 April 2014. The bundle of documents lodged with the Commission included the application (Form F16), the employer’s statutory declaration (Form F17), a copy of the Agreement and the statutory declaration of an employee organisation (Form F18), in this case, the Shop, Distributive and Allied Employees’ Association (SDA).

[3] On 12 May 2014, the Commission sent correspondence to the Applicant noting a number of concerns it had with certain aspects of the Agreement. The concerns included comments made by the SDA in the Form F18, the dispute settlement procedure, minimum shift engagement, span of ordinary hours, breaks, penalties, and allowances.

[4] A response together with undertakings was received from the Applicant on 22 May 2014. For the reasons below, the Agreement is approved.

Bargaining process

[5] The SDA states that it disagrees with certain answers provided in the employer’s statutory declaration, specifically with the answers provided in response to Parts 2.4, 2.5 and 2.8.

[6] Under Part 2.4, the Applicant describes the steps undertaken to provide the employees with access to the agreement as follows:

[2014] FWCA 3554

DECISION

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From 4 March to 1 April, explanation sessions were conducted with Store Managers and Business Managers across the country;

Tuesday 25 March was the last day the proposed agreement and material was made readily available to all employees; and

From 4 March to 1 April, Store Managers and Business Managers explained the proposed agreement and process to retail employees using an agreement explanation document.1

[7] Under Part 2.5, the Applicant stated that the agreement explanation document also provided information in relation to the date, time, location and method of the vote. As a result this information was provided during the information sessions held between 4 March and 1 April.

[8] In response to Part 2.8, the Applicant provided the following dates:

The date of the last notice of representational rights given to an employee who will be covered by the agreement

19 February 2014

The date voting for the agreement commenced (voting commences on the first date that an employee is able to cast a vote)

10 April 2014

The date that the agreement was made (that is, the date on which the voting process by which the employees approved the agreement concluded).

17 April 2014

[9] In Attachment A to the Form F18, the SDA provided the following comments:

“1. 2.4, 2.5 and 2.8 refer to the agreement explanation and voting process. The timeline for this process appears to have some incorrect dates and is missing some details.

The agreement explanation and voting process was as follows: Managers attended information sessions from 3 March to 1 April. The

SDA attended most of these sessions and was available to answer questions.

A copy of the proposed agreement was placed in stores following the briefings sessions given to the area managers but no later than 2 April.

Information sessions were conducted in stores following the briefingssessions given to the area managers but no later than 2 April. The SDA attended many of the store information sessions and was available to answer questions.

The 7 day notice period began on 2 April. Voting began on 10 April and finished on 14 April. The vote was counted on 17 April.

1 This document was Attachment B to the employer’s statutory declaration.

[2014] FWCA 3554

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2. At 2.5. The SDA was involved in the agreement explanation process of the proposed EBA. The SDA attended the manager briefing sessions and the employee sessions at stores. The SDA was available to answer questions from employees. The SDA did not participate in the voting process.”

[10] In the correspondence of 22 May 2014, the Applicant agreed with the points made by the SDA except in relation to the information sessions which the Applicant says were conducted as stated in its Form F17. The difference in the details of the information sessions is not a matter of substance in this approval application.

[11] I note that 991 employees are to be covered by the agreement. 836 employees casted a valid vote and 794 of those valid votes voted to approve the agreement.

Minimum shift engagement

[12] In the Commission’s correspondence, the Commission noted that the General Retail Industry Award 2010 (the Retail Award) set a three hour minimum shift engagement for part-time and casual employees. Clause 5.3(f) of the Agreement on the other hand set a three hour minimum engagement except when an employee is attending a company meeting or training session.

[13] In the employer’s correspondence in response, the employer was concerned that a change from two hours to three hours minimum engagement for training or meetings would “likely see an end to training”. The employer submitted that this arrangement has been in place for 14 years and that the higher rates of pay compensate for this variation. Given that the rates of pay are approximately 8-9% higher than the rates under the Retail Award, I accept the employer’s submission and find that the employees are better off overall under the Agreement despite the variation in minimum shift engagement hours.

Undertakings

Dispute Settlement Procedure

[14] It is a requirement under s.186(6)(a)(ii) for an agreement to include a term that provides for independent dispute resolution to settle industrial disputes in relation to the National Employment Standards. The Commission noted in its correspondence to the Applicant that the grievance procedure clause found at clause 2.2 makes no mention of disputes that arise in relation to the National Employment Standards.

[15] The employer has provided an undertaking that the grievance procedure will apply to any disputes that arise in relation to the National Employment Standards.

Hours of work

[16] In its correspondence, the Commission noted that the Agreement does not appear to provide for a span of ordinary hours. The employer has provided an undertaking to the Commission that the ordinary span of hours will be those as provided at clause 27.2(a) of the Retail Award.

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Breaks between shifts

[17] Clause 5.3(i) 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 Retail Award provided for 12 hour break which may be reduced to not less than 10 hours by mutual agreement.

[18] The employer has advised the Commission in its undertaking that breaks between shifts less than 12 hours are rare and only by mutual agreement.

Meal allowance

[19] In its correspondence the Commission noted that the Agreement does not provide for meal allowance. The employer’s response is that an employee’s entitlement to meal allowance rarely occurs as overtime is rare. This response has been incorporated into the employer’s undertakings. In circumstances where overtime is rare, I am satisfied that the employees would nevertheless be better off overall despite the lack of meal allowance.

Uniform

[20] The employer has submitted to the Commission that employees are not required to wear a uniform. Consequently the clothing allowance provisions (cl.20.2) of the Retail Awarddo not apply. This response has been incorporated in the employer’s undertakings.

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

[22] The Applicant should make known to its employees this decision and the undertakings it has provided to enable this Agreement to be approved.

[23] The undertakings were provided to the bargaining representative pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertakings provided.

[24] 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.

[25] 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.

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[26] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 13 June 2014. The nominal expiry date of the Agreement is 31 March 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code G, AE408369 PR551124 >

[2014] FWCA 3554

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ANNEXURE A

N 0 N I B

22 May 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 Noni B Enterprise Agreement 2014- AG2014/584

Noni B gives the following written undertakings with regards to the Noni B Enterprise Agreement 2014:

1 . Clause 2.2 - Grievance Procedure, the grievance procedure will apply to any disputes that arise in

relation to the National Employment Standards as per s. 186(6)(a)(ii) of the Fair Work Act 2009.

2. Part 5 - Hours of Work, the ordinary span of hours will be those as p rovided at c lause 27.2(a) of the

Genera l Retail Industry Award.

3. Part 5 - Hours of Work, and in partic ular. sub-clause 5.3(i), Noni B 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.

4. Clause 5.4 - Overtime, Noni B has advised the Commission that an employee's entitlement to a meal

allowance for overtime would rarely occur.

5. Uniforms - Noni B advised the Commission that employees have never been required to wear a

uniform and there is no intention to change to uniforms.

Yours Sincerely,

Phillip Fikkers

General Manager - Human Resource SeNices

Noni B Limited

N 0 N I B limite d , 10 Garling Road Kings Park NSW 2148 I PO Box 6006 Mail Deliver Centre Blacktown NSW 2 148 T 0 2 8822 5333 F 0 2 8822 5300 W www.nonib.com.au ABN 96 003 321 579

Part 1 1.1 1.2

Part 2 2.1 2.2 2.3 2.4 2.5

Part 3 3.1 3.2 3.3 3.4 3.5

Part 4 4.1 4.2 4.3 4.4 4.5 4.6 4.7

Part 5 5.1 5.2 5.3 5.4 5.5 5.6 5.7

Part 6 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8

Part 7 7.1 7.2 7.3 7.4 7.6 7.7 7.8 7.9 7.10

Part 8

Noni B Enterprise Agreement 2014

Rollout Version, 26 February 2014

Preliminary Operation of Agreement Definitions

General Employment Matters Appointment Grievance Procedure Individual Flexibility Arrangement Flexible Work for Parents Workplace Consultation

Employment Categories Salaried Employees Full Time Employee Part Time Employee Casual Employees Fixed Period Contract

Remuneration

Noni B Sales Assistant Classification Noni B Head Office Classification Noni B Assistant Store Manager Classification Noni B Store Manager Classification Junior Rates of Pay Superannuation Replacement Store Manager Allowance

Hours of Work Permanent Employees Roster Principles Casual Employee Indicative Roster Working Hours Overtime Two Shifts in a Day Penalties Meal Breaks

Leave Personal Leave Compassionate Leave Annual Leave Public Holidays Special Leave Long Service Leave Parental Leave Community Service Leave

General Employment Conditions Termination of Employment Payment of Wages Probationary Period Employee Mobility Travel Costs Termination, Change and Redundancy Abandonment of Employment Health Assessments Suspension of Employment

Signature Section

Arrangement of Agreement

2 2 2

3 3 3 4 5 5

6 6 6 6 6 7

7 7 8 8 9 9

10 10

10 10 11 11 12 12 12 13

13 13 14 15 16 16 17 17 18

19 19 19 20 20 20 20 21 21 21

22

li

Employer Undertaking


Part 1 Preliminary

1.1 Operation of Agreement

(a) This agreement is the Noni B Enterprise Agreement 2014.

(b) This agreement is binding upon Noni B and the employees of Noni B in respect of employees employed in the classifications

contained in this agreement.

(c) This agreement will commence at the start of the first full pay period following its approval by FWC.

(d) This agreement will nominally expire on the 31 March 2018.

(e) This is a comprehensive agreement and will not be read in conjunction with any industrial agreement or industrial award except as

expressly provided for within this agreement.

(f) The NES and this agreement combine to form the minimum conditions of employment for employees covered by this agreement.

(g) A copy of this agreement and the NES will be readily available within each Noni B store.

1.2 Definitions

(a) 'BM' is a Business Manager who looks after a group of stores within a region.

(b) 'continuous service' means service for any employee under an unbroken contract of employment.

(c) 'direct family' includes a spouse, de-facto partner, child, parent, grandparent, grandchild or sibling of the employee or a child,

parent, grandparent, grandchild or sibling of a spouse or de-facto partner of the employee. Direct family will also include: foster

and step relationships; parents-in-law, son-in-law and daughter-in-law; ex-spouses and de-facto spouses.

(d) 'financial year' means a twelve month period commencing on the 1st of July each calendar year and concluding on the 30th of June

in the following calendar year.

(e) 'FWC' means Fair Work Commission.

(f) ' line manager' is the person the employee directly reports to.

(g) 'mutually agreed' means agreement is taken to be granted if work subject to the mutual agreement is approved by Noni B and

performed by the employee. I f an employee is concerned that they have not mutually agreed they should immediately raise the

concern via the agreement's Grievance Procedure. If an employee indicates they have not mutually agreed to a matter or wishes

to remove their mutual agreement this change will be made by Noni B within 7 days.

(h) 'NES' means the National Employment Standards from the Fair Work Act (as amended).

(i) 'Noni B' means Noni B Limited. ABN: 96 003 321 579.

U) 'non working day' means any day of the week in which an employee is not required to attend work.

(k) 'normal hourly rate' refers to a salaried employee only and is calculated by dividing the employee's annual salary by 52 weeks and

dividing this weekly figure by 38 hours.

Page 2 of 22 Rollout Version, 26 February 2014


(I) 'ordinary hours' means 76 hours per 2 week cycle for all full time employees and contracted fortnightly hours for a part time

employee. This definition does not apply to Noni B Store Managers.

(m) 'ordinary rate of pay' means the employee's wage rate as expressed in the wages section.

(n) 'permanent employees' are salaried employees, full time employees and part time employees.

(o) SDA is the Shop Distributive and Allied Employees' Association.

(p) 'Store Group Manager' is a Store Manager who looks after a small group of extra stores in addition to the store they manage.

Part 2 General Employment Matters

2 .1 Appointment

(a) Every employee will be advised in writing at the time of engagement or on any change of employment terms:

(i) Whether they are a full time employee, a part time employee or a casual employee;

(ii) Their employee classification;

(iii) Their weekly or hourly rate of pay;

(iv) Their ordinary hours if a part time employee;

(v) Their days and times of availability; and

(vi) Any other specific terms of appointment.

(b) A change in the employee's days and times of availability cannot in itself lead to a termination of the employment contract but may

lead to consultation between the employee and Noni B which may alter the future basis of the employment relat ionship.

2.2 Grievance Procedure

(a) Step 1: Grievances of an employee with Noni B will be discussed at the first instance by the employee with the employee's line

manager.

(b) Step 2: If the matter is not settled the employee may raise the matter with the employee's next-level-manager.

(c) Step 3: If the matter is not settled the employee may raise the matter in writ ing with the General Manager of Human Resource

Services.

(d) Step 4: I f the matter is not settled the employee may write to the Company Secretary.

(e) Step 5: If the matter still cannot be resolved, either party to the grievance may refer the matter to the FWC for resolution by

conciliation.

(f) Step 6: If the matter is not resolved in the FWC conciliation either party may refer the matter to FWC for arbitration. I f arbitration

is necessary FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are



necessary to make the arbitration effective. The decision of the member of FWC will bind the parties, subject to either party

exercising a right of appeal against the decision to a Full Bench.

(g) At any stage any party to a grievance may request that a person attend and represent them in this procedure. This representative

may be an official or delegate of the SDA. An employee may also contact the Noni B Human Resources team to seek t assistance

in resolving the dispute.

(h) If an employee is not satisfied with the manner in which a grievance is been dealt with they should set these concerns out in

writing and forward them to the Noni B Company Secretary.

(i) While a grievance is being dealt with under this procedure work must continue in accordance with the status quo.

G) The parties must co-operate to ensure these procedures are followed as quickly as possible.

2.3 Individual Flexibility Arrangement

(a) Noni B and an employee may agree on an individual flexibility arrangement (IFA).

(b) An IFA will not include unlawful terms. The employee must genuinely wish to enter the IFA and the employee must be better off

overall as a result of entering the IFA.

(c) An IFA may vary the effect of terms of this agreement if the IFA deals with 1 or more of the following matters:

(i) Arrangements about when work is performed;

(ii) Overtime rates; and

(iii) Penalty rates.

(d) Any IFA must be in writing and include:

(i) An explanation of each term of the agreement that is to be varied;

(ii) The ability for either Noni B or the employee to provide 4 weeks' notice of withdrawal from the IFA;

(iii) Detail on how the application of each term has been varied by agreement between Noni B and the employee;

(iv) Detail on how the IFA means the employee will be better of overall as a resu lt of it;

(v) The date the IFA commences to operate; and

(vi) Signatures from Noni B and the employee (if the employee is under 18 the IFA will also be signed by parent/guardian).

(e) A copy of the IFA will be provided to the employee by Noni B once the IFA has been signed.



2.5 Flexible Work for Parents

(a) An employee with at least 12 months continuous service who:

(i) Is a parent or guardian, or has the responsibility for the care, of a child who is school age or younger;

(ii) Is a carer (as defined in the Carer Recognition Act 2010);

(iii) Has a disability;

(iv) Is 55 or older;

(v) I s experiencing family or domestic violence; or

(vi) I s caring for or supporting an immediate family member or household member who requires care or support because of family

or domestic violence

May make a request in writing to Noni B for a change in working arrangements. This could include changes to hours of work,

patterns of work and changes in location of work.

(b) In addition to the NES, an employee may request flexible work arrangements if they have other genuine care commitments (eg

the care of grandchildren or elderly parents).

(c) To be eligible, a casual employee needs to have an ongoing expectation of work and be a long term casual ie someone who has

been employed on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months.

(d) Requests from the employee need to be in writing. The only reason Noni B will refuse the request is on reasonable business

grounds. Noni B will provide a written response to any request within 14 days and if Noni B is not in a position to agree to the

request they will provide the employee an explanation of why in their response.

2.6 Workplace Consultation

(a) Noni B will consult with employees about any major workplace changes that are likely to have a significant effect on the employee.

(b) An employee will be entitled to have representation for the purposes of consultation regarding the major workplace change.

(c) Noni B will discuss with the employees affected and their representatives, if any, the introduction of the major changes, the effects

the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees.

Noni B will give prompt consideration to matters raised by employees and/or their representatives in relation to the changes.

{d) Noni B will commence discussions as early as practicable after a definite decision has been to make the major changes.



Part 3 Employment Categories

3.1 Salaried Employees

(a) Salaried employees are those employees engaged as such.

(b) The following agreement clauses do not apply to salaried employees:

(i) Working Hours

(ii) Overtime

(c) The salaried employees' salary is payment for all hours worked for Noni B.

3.2 Full Time Employee

Full time employees are those employees engaged to work 76 hours per 2 week cycle.

3.3 Part Time Employee

(a) Part time employees will be advised of their ordinary hours on employment. These ordinary hours will be between a minimum of

10 hours and less than 76 hours per 2 week cycle.

(b) Where necessary and on the giving of 7 days' notice prior to the posting of the relevant roster, Noni B retains the right to reduce a

part time employee's ordinary hours:

(i) By up to 20% per year; or

(ii) In line with the Termination Change and Redundancy provision.

(c) Noni B may also make changes to a part time employee's ordinary hours if the employee concerned agrees to the change.

3.4 Casual Employees

(a) Casual employees are employees engaged on an hourly basis.

(b) A casual employee's rate of pay is calculated by adding the casual loading to the relevant part time employee's ordinary rate of

pay. This casual loading is in lieu of a casual employee's entitlements to personal leave, annual leave, jury service payments,

termination or redundancy payments.

(c) The casual loading will be 25%.



3.5 Fixed Period Contract

(a) Noni B may engage employees on a Fixed Period Contract.

(b) Prior to appointment of a Fixed Period Contract, the employee will be advised in writing of:

(i) The exact date of commencement and completion of the Fixed Period Contract;

(ii) Their Employment Category;

(iii) Their weekly or hourly rate of pay; and

(iv) Any other specific terms of appointment.

(c) In cases where an employee is on a Fixed Period Contract replacing someone on parental leave, or any other form of leave with an

uncertain return date, this will be set out in the contract. If so, the completion date of the contract may be varied to end on the

return of the employee being replaced providing reasonable notice is given.

(d) Fixed Period Contract must not run beyond its completion date. If this seems a possibility a further Fixed Period Contract needs to

be agreed in writing and countersigned by the employee concerned prior to the completion of the Fixed Period Contract in

operation.

Part 4 Remuneration

4.1 Noni B Sales Assistant Classification

(a) A Noni B Sales Assistant is an employee who is primarily employed in a retail role and to perform general duties within their

knowledge and training.

(b) The ordinary rates of pay for a Noni B Sales Assistant, 20 years of age and over, will be:

Full time emQio~ee Part t ime emQio~ee Casual emQio~ee

weeki~ rate houri~ rate hou ri~ rate#

From April 2014* $750.11 $19.73995 $24.66939

From April 2015* $771.12 $20.29267 $25.36014

From April 2016* $794.25 $20.90145 $26.12094

From April 2017* $818.08 $21.52850 $26.90457

* First full pay period in April of the applicable year

# Includes the 25% casual loading (refer to clause 3.4(c))

(c) When a Sales Assistant is required to be in charge of a store for a continuous period of more than 2 hours they will be paid the

applicable Assistant Manager hourly rate (plus penalties) for times so worked. This does not apply where an employee is

temporarily in charge during meal breaks.



4.2 Noni B Head Office Classification

(a) A Noni B Head Office employee is an employee who is primarily employed in a clerical or distribution centre role and to perform

general duties within their knowledge and training.

(b) The ordinary rates of pay for a Noni B Head Office employee, 20 years of age and over, will be:

Full time emQioyee Part t ime emQioyee Casual emQioyee

weekly rate hourly rate hourly rate#

From April 2014* $750.11 $19.73995 $24.66939

From April 2015* $771.12 $20.29267 $25.36014

From April 2016* $794.25 $20.90145 $26.12094

From Apri l 2017* $818.08 $21.52850 $26.90457

* First full pay period in March of the applicable year


4.3 Noni B Assistant Store Manager Classification

(a) Noni B Assistant Store Manager is an employee who is primarily employed in a retail and supervisory role and to perform general

duties within their knowledge and training.

(b) Noni B Assistant Store Manager general duties will include supervising other employees, opening & closing the store and security

of cash (as per level 3 of the modern retail award).

(c) The ordinary rates of pay for a Noni B Assistant Store Manager will be:

Full time em12loyee Part time emQioyee Casual emQioyee

weekly rate hourly rate hourly rate

From April 2014* $770.84 $20.28526 $25.34923

From April 2015* $792.42 $20.85324 $26.05901

From April 2016* $816.19 $21.47884 $26.84078

From April 2017* $840.68 $22.12321 $27.64600

* First full pay period in March of the applicable year




4.4 Noni B Store Manager Classification

(a) Noni B Store Manager is an employee who is primarily employed as a Store Manager and to perform general duties within t heir

knowledge and training.

(b) A Noni B Store Manager will be employed as a salaried employee.

(c) The minimum salary for a Noni B Store Manager will be:

Annual SalarY

From Apri l 2014* $43,452

From April 2015* $44,668

From April 2016* $46,008

From April 2017* $47,389

(d) A Noni B Store Manager will be rostered to work 76 hours per 2 week cycle plus, where reasonable, the following extra

engagements:

(i) 6 Store Meetings (ii) 4 Special Events

(iii) 2 Stocktakes (iv) Annual Noni B Conference

(v) For each hour worked in addition to both the reasonable extra engagements and 38 hours in a designated 2 week cycle a Noni

B Store Manager will be paid their normal hourly rate (plus Superannuation will be payable plus annual leave and personal

leave will accrue).

4.5 Junior Rates of Pay

Noni B Sales Assistants and Noni B Head Office employees, under the age of 20, will receive the below listed percentages of the

ordinary rate of pay for their relevant Employment Category:

~ Percentage

16 years & under 50%

17 years 60%

18 years 70%

19 years 80%



4.6 Superannuation

(a) Noni B will contribute superannuation monthly on behalf of all eligible employees to REST as per the Superannuat ion Guarantee

Legislation.

(b) REST is the only fund that Noni B will make superannuation contributions to on behalf of employees and employees will not be

able to opt in and out of funds or choose to have contributions made to a fund of their choice.

(c) On request, Noni B will perform deductions of personal contributions to REST, on a pre tax or post tax basis. These contributions

will be made monthly. An employee can not vary the dollar amount or percentage of their contribution on more than one occasion

per calendar year.

(d) In circumstances where an employee seeks to have their Superannuation contributions paid into an alternative fund they can make

a written request to Noni B. Noni B is not required to agree to the request and will consider any requests on its individual merits

and on a case-by-case basis.

4.7 Replacement Store Manager Allowance

A full time employee appointed to temporarily fill all the duties of a Store Manager, for one week or more, will have $50 week added to

their ordinary rate of pay whilst so appointed. (Pro rata for part time and casual employees.)

Part 5 Hours of Work

5.1 Permanent Employees Roster Principles

(a) Noni B will determine rosters of work for permanent employees on the basis of a 2 week cycle. Rosters will be posted a minimum

of 7 days in advance of the roster period.

(b) A temporary change to a permanent employee's roster may occur if the change is mutually agreed.

(c) When Noni B seeks to make a change to an employee's regular roster or normal working hours, Noni B will consult with the

employee about the change, including providing the employee information about the change, inviting the employee to comment on

the change and genuinely considering the employee's comments (eg on matters like family responsibilities, safe transport home).

(d) A copy of the roster will be kept in a conspicuous place in each Noni B store.

(e) Employees must be at their post ready to start work at their Rostered starting time.

(f) Employees will be paid in accordance with their Roster.



5.2 Casual Employee I ndicative Roster

(a) On a fortnightly basis Noni B will provide indicative starting and finishing times and days of work for casual employees.

(b) A casual employee will be advised of changes, if any, to their indicative roster prior to the start of their shift and Noni B will

endeavour to contact the employee and notify them of the change prior to their arrival at work.

(c) A casual employee is to inform stores prior to posting of the indicative casual roster of any potential unavailability so this can be

discussed and considered in setting the indicative roster.

(d) If a casual employee is unable to work in accordance with their indicative roster they must call their store 24 hours prior to

indicative start time, although in emergencies they must contact their store prior to their start time.

(e) Once a casual employee commences work, changes to their indicative finish time can only occur via mutual agreement.

5.3 Working Hours

(a) A full time employee will be Rostered to work 76 hours per 2 week cycle.

(b) Part Time Flex Up: A part time employee will be Rostered to work their ordinary hours per 2 week cycle. If a part t ime employee

mutually agrees to work in excess of their ordinary hours in any 2 week cycle they will be paid their ordinary rate of pay and

accrue annual leave and personal leave for any excess hours worked up to 76 hours.

(c) A casual employee may work a maximum 76 hours per 2 week cycle.

(d) An employee may not be Rostered to work for more than 10 hours per day, unless mutually agreed otherwise (excluding employee

meal break).

(e) A full time employee must not be Rostered to work for less than 4 consecutive hours per day.

(f) Part time employees and casual employees must not be rostered to work for less than 3 hours per start except where the

employee is attending a Noni B training session or meeting, when a 2 hour minimum can apply.

(g) Permanent employees will not be rostered to work more than 10 days in a 2 week cycle.

(h) Employees will not be rostered to work more than 6 consecutive days at any one time unless proposed otherwise by the employee

and mutually agreed.

(i) Unless mutually agreed otherwise, employees will receive at least a 10 hour break between the completion of work on one day and

the commencement of work on the next day.

G) Permanent employees will be entitled, on request, to receive one weekend off a month.

(k) Permanent employees will be provided 2 days off in a row each 2 week cycle unless mutually agreed otherwise.



5.4 Overtime

(a) Noni B may require an employee to work reasonable overtime.

(b) Apart from Noni B Stocktakes, Roadshows, Annual Conference and store meetings, an employee may refuse to work overtime in

circumstances where the working of such overtime would result in the employee working hours which are unreasonable having

regard to:

(i) Any risk to the employee's health and safety;

(ii) The employee's personal circumstances including any family responsibilities;

(iii) The needs of Noni B or of the workplace;

(iv) The notice (if any) given by Noni B of the Overtime and by the employee of their intention to refuse it; and

(v) Any other relevant matter.

(c) Overtime is only payable if the employee's BM approves the overtime prior to the commencement of the overtime.

(d) Any work done that falls outside the conditions set in the Working Hours provision will be classified as overtime.

(e) Overtime will be paid at the rate of 150% of the employee's ordinary rate of pay for the first 2 hours on each day that overtime is

incurred and 200% thereafter although overtime on Sunday will be paid at 200% and on a Public Holidays at 250%.

(f) The minimum payment for an employee on an overtime only engagement will be 3 hours.

5.5 Two Shifts in a Day

(a) Part time employees and casual employees may mutually agree to work 2 shifts on one day providing there is at least a 3-hour

break between the completion of the first start and the commencement of the second start.

(b) The agreements minimum daily start requirements will apply on each start.

(c) A part time employee or casual employee can terminate the agreement to work 2 shifts on one day on the giving of 7 days' written

notice.

5.6 Penalties

The following penalties will apply:

Permanent Emgloyees Casual Emgloyees*

Monday to Saturday - Before 6am, After lOpm 150% 175%

Sunday 150% 175%

* Includes the 25% casual loading (refer to clause 3.4(c))



5.7 Meal Breaks

(a) Rest Break and Meal Breaks entitlements are:

Working Hours Paid Rest Break Un1;1aid Meal Break

More than 4 and up to 5 hours: 15 minutes none

More than 5 and up to 7 hours: 15 minutes 60 minutes

7 hours or more: 2 x 15 minutes 60 minutes

(b) Breaks are to be taken as determined by Noni B but must be provided in to employees in a meaningful way.

(c) If an employee requests, and it is mutually agreed, the employee can work up to 6 hours without receiving the unpaid meal break.

(d) If mutually agreed, an employee may be provided a 45 minute or 30 minute unpaid meal break instead of the 60 minute break.

(e) Unless mutually agreed otherwise breaks are not to be taken within one hour of commencing or ceasing work and rest breaks are

not to be taken within one hour of a meal break.

Part 6 Leave

6.1 Personal Leave

(a) Employees will be entitled to personal leave in accordance with the NES.

(b) A full time employee will be entitled to 83.6 hours personal leave per anniversary year, accruing progressively.

(c) A part time employee will be entitled to a pro rata amount of personal leave calculated on his or her working hours up to 76 hours

each 2 week cycle.

(d) Personal leave applies for sick leave and carers leave.

(e) Employees will also be entitled to use personal leave for pre-natal medical appointments and blood donor leave.

(f) If an employee is taking personal leave they must personally contact their immediate manager as soon as reasonably practical.

(g) Employees are not entitled to pay for their accumulated personal leave on termination.

(h) Authorised personal leave, whether paid or unpaid, does not break an employee's continuity of service.

(i) Personal leave absences will be paid at an equivalent amount per hour to the employee's ordinary rate of pay.



Sick Leave

0) Sick leave may be used when an employee is not well enough to work.

(k) Where the employee is sick, Noni B may require evidence of the need for the leave via a medical certificate dated at the time of

absence, if it reasonably practicable to do so, otherwise a statutory declaration, for:

(i) Absences in excess of 2 consecutive days; or

(ii) On a single day absence if it occurs either side of a non-working day.

(I) Where an employee has a recurring pattern of sickness, Noni B may counsel the employee and may require that such sick days be

supported by evidence as reasonably required by Noni B.

Carers Leave

(m) Carer's leave may be used when an employee needs to provide care or support to a member of the employee's 'direct family', or a

member of the employee's household, who requires care or support because of a personal illness or injury or an unexpected

emergency.

(n) Where the employee is taking carers leave, Noni B may require evidence of the need for the leave via a medical certificate from a

'registered health practitioner' or a statutory declaration and a statutory declaration in the case of an unexpected emergency.

(o) Unpaid carer's leave of 2 days per occasion is available to employees who have exhausted their accrued personal leave and to

casual emp.loyees. Unpaid carer's leave can be taken as a single unbroken period of 2 days or as separate periods if mutually

agreed.

Domestic Violence Leave

(p) Noni B is committed to providing support to employees who experience domestic violence and will treat all such matters with

confidentiality.

(q) A permanent employee experiencing domestic violence may access personal leave to attend to court, medical appointments and

other activities related to domestic violence.

(r) A permanent employee who supports a person experiencing domestic violence may take carer's leave to accompany them to court,

to hospital, or to mind children.

(s) An employee may be required to produce suitable evidence that domestic violence has occurred such as a document issued by the

police service, a court, a doctor, a district nurse, a lawyer or in a statutory declaration.

6.2 Compassionate Leave

(a) Upon the death of a parent, partner or child (including foster/step child), or if an employee is attending an overseas funeral of a

direct family member, a permanent employee is entitled to 5 days paid compassionate leave per occasion. Upon the death of other

members of a permanent employee's direct family the employee is entitled to 3 days paid compassionate leave per occasion.

(b) If member of an employees' direct family or household contracts or develops a personal illness or sustains an injury that poses a

serious threat to their life the employee will be entitled to 2 days paid compassionate leave per occasion.



(c) The employee may be required to provide evidence of the requirement to take compassionate leave to the reasonable satisfaction

of Noni B.

(d) Requests for compassionate leave for extended family members or extensions to the length of compassionate leave will be

considered by Noni B on a case- by-case basis.

6.3 Annual Leave

(a) Permanent employees will be entitled to 4 weeks paid annual leave per completed year of service in accordance with the

provisions of the NES.

(b) Annual leave accrues progressively.

(c) The taking of annual leave is subject to Noni B's operational requirements. Requests for annual leave will not be unreasonably

refused although no annual leave will generally be granted 2 weeks prior to or after Christmas; the first 2 weeks of December; the

week prior to Mothers' Day; the week of and the week prior to sales; and at t imes of VIP Customer Special Events.

(d) Annual leave applications must be submitted to the BM 4 weeks prior to the requested commencement date and must be agreed

to for the leave to take place.

(e) Annual leave is to be taken within a period not exceeding twelve months from the date it becomes due. On the giving of 4 weeks'

notice, Noni B may direct an employee to take annual leave if they have accumulated more than 8 weeks of annual leave.

(f) Where any Public Holiday for which the permanent employee is entitled to payment under this agreement occurs during any period

of annual leave taken by an employee under this clause, the period of annual leave will be increased by one day in respect of that

Public Holiday.

(g) An employee may request, in writing, to have some of their accrued annual leave paid out in each calendar year. Noni B will

consider each request on its merits and will determine each request on a case-by-case basis and in consideration of Noni B's

operational requirements. Annual leave will not be cashed out if it would result in the employee's remaining annual leave accruals

being less than 4 weeks.

(h) Annual leave Loading forms part of each permanent employee's ordinary rate of pay and for this reason will not be payable at

times of annual leave.

(i) If, during a period of annual leave, an employee takes another form of paid leave (eg personal leave) or unpaid community

services leave the employee will be re-credited their annual leave for the period of the other leave. For the annual leave to be re

credited the employee must provide reasonable evidence of the need to take the other form of leave.



6.4 Public Holidays

(a) Permanent employees will be entitled, without loss of pay, to the following public holidays in each anniversary year of

employment:

New Years Day

Labour Day

Easter Saturday

ANZAC Day

Queens Birthday

Good Friday

Boxing Day

* 11th Public Holiday

Australia Day

Christmas Day

Easter Monday

*The 11th Public Holiday will be the particular stores gazetted regional Public Holiday (Melbourne Cup day for those stores located in

the Melbourne metropolitan area is an example). If no 11th Public Holiday is gazetted in a region the employees concerned will be paid

for the 11th Public Holiday or have an additional day added to their annual leave on 1 November each year.

(b) Employees in the Australian Capital Territory will continue to also receive Canberra Day as a public holiday.

(c) Should any of the public holidays fall on a full time employee's non working day, the employee will have an additional day added

to their annual leave or, where an employee elects, be paid for the day. This payment will apply, on a pro rata basis, to any part

time employee working 10 days per 2 week cycle or if a public holiday falls on a part time employee's normal rostered working

day.

(d) All permanent employees will be entitled without loss of pay to any additional public holidays that are proclaimed or gazetted after

the commencement of this agreement.

(e) Public holiday work is voluntary, subject to Noni B's operational requirements.

(f) If a fu ll time employee, part time employee or casual employee works on a gazetted public holiday the employee will be paid

250% of their ordinary rate of pay. If a Store Manager works on a public holiday they will be paid 200% of their normal hourly rate

for the day.

(g) An employee may request to have Easter Sunday off. Noni B will consider this request in line with their operational requirements

and their ability to replace the employee.

6.5 Special Leave

(a) Unpaid special leave from work may be granted for a variety of reasons such as:

(i) An employee who is studying and requires time to attend exams or participate in annual school holidays

(ii) An employee who wishes to travel overseas or interstate for an extended period

(iii) An employee who requires time off to care for a sick or injured close relative

(b) For all types of special leave, an Application form must be completed and sent to Head Office.

(c) The granting of special leave is at the complete discretion of Noni B and will not exceed 3 months.



(d) Whilst on special leave all entitlements to annual leave, sick leave, long service leave or superannuation will be frozen from the

date of commencing such leave to the date of returning f rom such leave.

(e) Such absence shall not break continuity of employment for the employee concerned.

6.6 Long Service Leave

(a) Employees covered by this agreement will be entitled to long service leave, subject to, and in accordance with, the provisions of

the employee's relevant State legislation, Territory legislation or Commission order.

(b) At times of long service leave employees may elect to take twice the leave on half the pay on approval by Noni B.

6.7 Parental Leave

(a) Parental leave will be available to eligible employees in accordance with this agreement and the NES (including adoption leave,

transfer to safe work, special maternity leave, concurrent leave).

(b) A permanent employee with 12 months' or more continuous service will be entitled to access unpaid parental leave. The maximum

period of unpaid parental leave will be 24 months provided that if an employee is taking more than 12 months' parental leave they

must provide Noni B at least 2 months not ice of the date of their return to work. Annual leave or long service leave owed to an

employee can be taken as part of the employee's approved parental leave.

(c) A casual employee will be entitled to parental leave provided that:

(i) They are employed on a regular and systematic basis for an ongoing period of employment for at least 12 months

immediately preceding when the employee is to commence parental leave; and

(ii) Have but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment.

(d) Whilst on parental leave, as a primary care giver, a permanent employee may be employed by Noni B on a separate employment

contract as a casual employee. This can only occur on Noni B receiving a written request from the employee concerned and on the

understanding that the arrangement does not in any way impact on the employee's accruals, entitlements or permanent

employment contract unless Noni B terminates the casual contract of employment due to misconduct. Noni B will offer hours of

work to such an employee subject to the normal principles of a casual engagement and Noni B's operational requirements. A

permanent employee on parental leave may not work on a separate casual contract during that period where the employee is

receiving payment under a Federal Government parental leave scheme.

(e) Permanent employees on approved parental leave will be paid their ordinary rate of pay, for the first 13 weeks of the leave. (This

payment will be in addition to any payments under a Federal Government parental leave scheme.)

(f) On an employee's return from parental leave, as a primary care giver, Noni B will give due consideration to the employee's family

responsibilities when setting a roster.

(g) After completing parental leave, as a primary care giver, a salaried or full time employee may return to work part time if that is the

employee's preference and the arrangement meets Noni B's operational requirements. Noni B will give genuine consideration to

each request in accordance with its operational requirements.



(h) How does an employee take parental leave?

(i) The employee must provide 10 weeks' written notice of the proposed parental leave along with the amount of leave sought. A

medical certificate evidencing the need for the leave needs to accompany this notice;

(ii) At least 4 weeks prior to taking the leave the employee needs to advise Noni B, in writing, of the date they will be

commencing the leave;

(iii) The employee must advise Noni B whether their partner is also taking parental leave;

(iv) The employee must give 4 weeks' written notice of their intention, if it has been arranged, that they will return within 12

months of the birth of the baby or 8 weeks' notice, if it has been arranged, for the employee to return between 12 months

and 24 months from the birth;

(v) On return to work the employee is entitled to the same position they held previously - if this position is no longer available the

employee is entitled to a similar j ob on similar pay; and

(vi) Parental leave does not break an employee's length of service.

(i) Noni B will consider all applications for parental leave.

6.8 Community Service Leave

(a) An employee who engages in an 'eligible community service' is entitled to be absent from employment to engage in the activity

plus reasonable travel time associated with the activity and reasonable rest t ime following the activity.

(b) 'Eligible community service' includes:

(i) Jury service;

(ii) Voluntary emergency management activity*; or

(iii) Any activity prescribed by the regulations to the Fair Work Act.

*This includes an activity that involves 'dealing with an emergency or a natural disaster'; and the activity is voluntary; and the

employee is a member of the recognised management body; and the employee was requested to engage in the activity (or it was

reasonable for them to assume a request would be made).

(c) An employee must provide Noni B notice of the leave as soon as practicable including notification of the expected period of the

leave. Noni B may requ ire an employee to provide them reasonable evidence they have been engaging in an eligible community

service activity.

(d) Employees will not be paid for community service leave except for jury service where an employee will be paid.



(e) For jury service:

(i) Noni B may require the employee to provide Noni B reasonable evidence the employee has taken all necessary steps to obtain

any amount of jury service pay to which the employee is entitled (even if it is nil).

(ii) An employee is not entitled to be paid for jury service unless the employee provides the requested evidence. If the employee

provides the evidence the total amount payable is reduced by the total amount of jury service pay.

(iii) An employee required to attend for jury service during a period of annual leave will, on producing satisfactory evidence of

attendance, be re-credited with annual leave for the period for which jury service was attended.

Part 7 General Employment Conditions

7.1 Termination of Employment

(a) At time of termination the employee or Noni B must provide the following periods of notice:

EmQioyees Continuous Service Period of Notice

Not more than 1 year 1 week

1 and less than 3 years 2 weeks

3 and less than 5 years 3 weeks

5 years and over 4 weeks

(b) Any employee who is guilty of serious misconduct may be instantly dismissed and will only be paid up to the time of dismissal.

(c) An employee over 45 years of age is entitled to 1 extra weeks' notice if the employee has completed at least 2 years of continuous

service.

(d) Payment in lieu of notice will be paid at the employee's ordinary rate of pay if the appropriate notice period or part thereof is not

given by Noni B.

(e) Noni B will have the right to withhold moneys due to an employee if an employee fails to give notice or fails to work their allocated

notice period. Maximum amount to be held is the employee's ordinary rate of pay for the period of notice.

(f) Termination Forms must be completed and sent to the pay office immediately after an employee decides to terminate their

employment with Noni B.

7.2 Payment of Wages

(a) Wages will be paid fortnightly, in arrears, by Electronic Funds Transfer. This payment will be based on the employee's average

hours of work plus any extra payments accrued by the employee during the pay week. The transfer will be made within 4 days of

the end of the pay period.



7.3 Probationary Period

All employees' employment is on a probationary basis for the first 3 months and as such will be reviewed during that period.

7.4 Employee Mobility

To cater for the changing needs of the business or to improve an employee's employment prospects or opportunities within the

business an employee may be required to work in an alternative store to the store they were originally employed in. This may be a

temporary or permanent requirement. Every consideration will be given to employee's travelling time and family circumstances when

such a requirement is contemplated.

7.5 Travel Costs

(a) Occasionally employees may be required to temporarily attend another store to perform their duties.

(i) On these occasions any additional cost of travel or t ime spent in transit, over and above that normally incurred, will be

reimbursed by Noni B.

(ii) I f an employee uses public transport, any additional fares are claimable.

(iii) Where an employee uses his or her own vehicle, any additional kilometers will be paid on a per kilometer basis as specified in

the Annual Motor Vehicle Tax Guide.

(b) No travel costs are payable if an employee is permanently relocated.

7.6 Termination, Change and Redundancy

(a) Noni B will adhere to the Termination Change and Redundancy standards as set by the NES.

(b) Major change applies where Noni B has made a definite decision to introduce major changes that are likely to have significant

effects on employees. This may result from:

(i) Major changes in Noni B or Noni B's structure

(ii) Changes in technology

(iii) Economic recession

(c) In some cases major change may lead to redundancies. Redundancy applies where Noni B has made a decision that it no longer

wishes the job the employee had been doing to be done by anyone. If redundancy occurs the payment permanent employees will

be entitled to is the redundancy payment as per the NES.



7.7 Abandonment of Employment

(a) If an employee is absent from work for a continuous period exceeding 3 rostered days without just cause and without notifying

Noni B, Noni B will be entitled to assume that the employee has abandoned his or her employment.

(b) Abandonment of Employment may lead to termination although prior to termination of employment Noni B will attempt to contact

the employee in order to try and establish whether the employee has a legitimate explanation for his or her absence.

7.8 Health Assessments

(a) Noni B has an obligation to ensure, as far as possible, that it provides a safe and healthy working environment as prescribed by

State and Territory Law.

(b) If on an employee's return to work from a period of absence caused by illness or injury not related to their work and Noni B has

concerns about the impact the employee's health may have on that employees' ability to safely carry out his or her duties Noni B

may require that the employee undergo a health assessment.

(c) Noni B will cover all costs associated with the health assessment it has required.

(d) The only purpose of a health assessment will be:

(i) To assess whether the employee can meet the physical requirements which are fundamental to the employee's position;

(ii) To minimise risk of ill-health or injury arising from the performance of normal duties; or

(iii) To minimise risk of injuries to other employees.

(e) Should a dispute arise from a health assessment, Noni B will take into account any information prepared by a duly qualified

medical practitioner and provided to it by the employee.

7.9 Suspension of Employment

(a) If on reasonable grounds Noni B suspects that an employee has been involved in serious misconduct Noni B may, if an

investigation is required, suspend the employee on full pay in order that Noni B can properly investigate the alleged serious

misconduct. No suspension will take place without the approval of the Noni B Company Secretary.

(b) If an employee is suspended the employee is not to attend or contact any Noni B workplace during the investigation without the

consent of the Noni B General Manager of Human Resources. This consent will not be unreasonably denied in instances where the

employee needs to contact other employees to assist in the preparation of their response to the alleged serious misconduct.

(c) Whilst on suspension an employee must be fully available to attend interviews and assist with the investigation.


Part 8 Signature Section

Signed for Noni B Limited:

/l~~ ... : ........ ~ ................... (Signature)

.... ~Y ... A.p .. (d .. !.:.e.! ~ate) e.~Uk:.l-:.l.P. .... f.J.~K:.f. ~me) G1::J.:::: .. H.l . .$. .............. (Position)

Address:

10 Garling Road

Kings Park NSW 2148

Page 22 of 22

Nonl B Enterprise Agreement 2014

Signed by SDA for employees of Non! B Limited:

~'""""'] .Y..~f!f!::.:.l ... ?.:~!.hoate)

I ltri. ..... ~f:(l~t!,,1..tjq,/!:!(Name) f\lfj[rol/1/-t.- /J.!.!!.!..f.lft!:..[ .. [~f.: {Position)

Address:

Level 6, 53 Queen Street

Melbourne Victoria

Rollout Version, 26 February 2014

~ . ..

N 0 N I B

22 May 2014

Chambers of Commissioner Bull

Fair Work Commission

Level8, Tower Terrace

80 William Street

East Sydney, NSW 2011

Dear Commission,

Application for Approval of Noni 8 Enterprise Agreement 2014 - AG2014/584

Noni B gives the following written undertakings with regards to the Noni B Enterprise Agreement 2014:

1 . Clause 2.2 - Grievance Procedure, the grievance procedure will apply to any d isputes that arise in

relation to the National Employment Standards as per s.186(6)(a)(ii) of the Fair Work Act 2009.

2. Part 5- Hours of Work, the ordinary span of hours will be those as provided at clause 27.2(a) of the

General Retail Industry Award.

3. Part 5- Hours of Work, and in particular, sub-clause 5.3(i), Noni B 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.

4. Clause 5.4- Overtime, Noni B has advised the Commission that an employee's entitlement to a meal

a llowance for overtime would rarely occur.

5. Uniforms - Noni B advised the Commission that employees have never been required to wear a

uniform and there is no intention to change to uniforms.

Yours Sincerely,

Phillip Fikkers

General Manager - Human Resource SeNices

Noni B Limited

N 0 N I B Limited : 10 Garling Road Kings Park NSW 2148 I PO Box 6006 Mail Deliver Centre Blacktown NSW 2148 T 02 8822 5333 F 02 8822 5300 W www.nonib.com.au ABN 96 003 321 579

[2014] fwca 3554 - sda nationalsda.org.au/download/enterprise-agreements/noni-b-enterprise... ·...

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