Facts

Scenario 1

Facts

Teuila has worked as a shelf stacker at a few supermarkets in Brisbane over the past few years. She has found the hours very flexible and the work well paid, while she had been studying at university. She first completed a business degree and then completed a law degree in mid-2021. In April 2021, she started working at one of the new Essen Supermarkets, a new chain started in Australia in 2018. While she was working at Coles in Capalaba, she decided to take on the work at the Essen Supermarket as it was closer to home. The fact she was about to finish her law degree influenced her decision, as she was hoping to work as many hours as possible until she decided if she wanted to apply for work in a law firm. Teuila worked two nights a week at the Coles, and five, six hour shifts a week at the Essen Supermarket. She was enjoying the stress-free environment, so decided to postpone her potential law career and continued to work as a shelf stacker for the rest of 2021 and into 2022. In August 2022, after some discussions with fellow employees at Essen, Teuila discovered she was being paid less than the relevant award minimum rates. She knew the rates were different to Coles but was aware she was always getting above award rates at Coles, as she was under an enterprise agreement. While such an agreement had recently been negotiated for Essen employees, it had not yet been approved by the Fair Work Commission. Teuila brought the discrepancy to the notice of her manager, who explained to her that because she was not an employee, but an independent contractor, she received the National Minimum Wage and not the award wage. See below for the Supply Agreement (Appendix 1) signed and agreed to by Teuila. Teuila believes she is an employee of Essen, and not an independent contractor despite the fact she works at Coles (all be it only 2 shifts a week and sometimes not even that). In her email communications with Essen before she signed the agreement, she was told she would generally have her shifts set out two weeks in advance and due to the shortage of workers, would easily get 38 hours per week. The whole time she has been employed by Essen, her pay has been paid directly into her bank account every fortnight, after Essen has taken out her income tax, and she has received 12% superannuation, which is above the required legal minimum. Over the past 16 months Teuila has worked very consistent hours, doing a 38-hour week, with some overtime when other workers are sick. She receives overtime for that work. While she does not get paid holiday pay, she does receive 10 days sick pay a year. Finally, Teuila tells you her agreement expired on April 1, 2022, in accordance with clause 5.4 of the Agreement, and she re-signed the same agreement on that day.

Required.

You are required to advice George Bowen if Teuila is an employee or an independent contractor and whether that will make a difference regarding whether she is covered by Parts 2-1and 2-2 of the Fair Work Act 2009 (Cth). There is no need to discuss whether any of the National Employment Standards have been breached in her scenario. You can assume if she is an employee then she will be covered by the relevant award and thus should have been paid the award rate.

Scenario 2

Facts

The second file George has given you deals with the award Teuila believes she should be bound by; the Retail Industry Award 2020. The award is due to be repealed and replaced by a new award, called the Australian Retail Industry Award 2022. Unfortunately, the possible approval of the award by the Fair Work Commission is well behind schedule, caused by severe staffing shortages, some of which were due to the Covid pandemic. The Commission sent the award to George, retaining the firm with the task of examining the award to ascertain if it complies with the requirements of the Fair Work Act 2009 (Cth).

Required.

You are required to examine the award (set out in Appendix 2 below) and advice George of any reasons you believe it does not comply with the Fair Work Act 2009 (Cth), and any effect on the award such individual problems will cause, as set out in the Act. You can assume there are no breaches of Part 3-1 (as we have not covered this part of the Act in the course at this date). Note: The Australian Retail Industry Award 2022 is a fictious award.

Scenario 3

In 2022, Essen started the process of establishing a new undertaking at Carindale, Brisbane. In February, Essen sought, from its existing employees in its stores in the Greater Brisbane area, expressions of interest to work in the Carindale store. In March, Essen made written offers of employment to some of those employees who had said they were interested. The offers stated that Essen was officially offering the person ongoing employment in their particular position, in the new Carindale store, when the store opened, which they expected to be on 10 July. Until then, Essen said they would continue to be employed until that date in their current region and will thus be covered by that regions enterprise agreement. The Australian Retail Union has met with George, explaining to him that 10 employees accepted the offer and so Essen bargained with them to create a draft enterprise agreement. A copy of which can be found in Appendix 3. Essen states that the agreement is made pursuant to ss 172(1) and (2)(a) of the Act. The Union tells George they believe it is an agreement made under ss 172(2)(b) and (4) and thus the agreement cannot be approved by the Commission. The Union states they were not involved in the bargaining process as bargaining representatives. On June 1, the 10 employees voted unanimously on the agreement, as per s 181 of the Act. The Union also believes the agreement will fail the Better Off Overall Test when compared to the Retail Industry Award 2020 (note, not the new proposed award relevant in Scenario 2 of the assignment but the actual Retail Industry Award 2020, which can be found on the Fair Work Commission site.).

Required.

Advise the Australian Retail Union whether the Commission can approve the agreement. This requires an examination of the Unions concern that the agreement is a greenfields agreement, as well as whether the agreement complies with the requirements of the Fair Work Act 2009 (Cth). Advise the Union whether clause 19 of the draft agreement means the agreement has passed the BOOT. Finally, assuming clause 19 does not exist, advise the Union whether the agreement passes the BOOT. When assessing the BOOT, you only need to compare what is in the draft enterprise agreement with the actual award.

Appendix 1

Essen Supply of Services Agreement This Supply Agreement is entered into on 12 February 2021 and is between 1. [Place Name and Address Here] AND 2. Essen Supermarkets Australia Pty Ltd (ABN 55 555 555 555) of Level 5, 555 Queen Street, Brisbane, Queensland. (Essen) 3. Background 3.1 You are a supplier in business on your own account who wishes to work for Essen as a shelf stacker. This service will be provided subject to certain conditions as set out in this Agreement. 3.2 You are free to supply your services as a shelf stacker either personally or through someone else engaged by you. Should you choose to provide the Services through a third party in this way, you remain responsible for ensuring that the obligations set out in this Agreement are complied with. 4. The Parties Agree: 4.1 This Agreement commences on the date set out above and will continue until it is terminated by either party in accordance with clause 5.4 below. 4.2 Essen authorises You to arrange the provision of Services from time to time on the terms set out in this Agreement. 4.3 Throughout this Agreement, Services means working stacking shelves at the Essen Supermarket located at Carindale, Brisbane 4.4 You are not obliged to do any work for Essen, nor is Essen obliged to make available any work to you. Throughout the term of this Agreement, you are free to work for any other party including competitors of Essen. 4.5 It is entirely up to you whether, you decide to accept the offered shifts which will be available online, via our dedicated hours of employment site. 5. Miscellaneous Issue 5.1. You will be responsible for complying with all applicable work health and safety legislation as well as Essens own staff polices available on our website. 5.2 Any relevant equipment, such as gloves will be provided by Essen. This includes an Essen shirt with logo that must be warn if your shift forms part of the opening hours of the store, when customers are in the store (being 8am until 10pm 7 days a week). 5.3 You will be paid the hourly rate set out in the Essen Pay Rates document you can access on the web site. 5.4 This Agreement can be terminated at any time, in writing. Otherwise the Agreement will expire after 12 months. 5.5 In performing your obligat1ions under the Agreement, you shall comply with all applicable anti- slavery and human trafficking laws, statutes, regulations and codes in place at the time including any anti-slavery policy adopted by Essen communicated to you (and will ensure that any delegate engaged by you does the same).