Enforceable Undertaking Super-A-Mart Pty Ltd

Australian Government
FairWorl<
0 M BUDSM AN
ENFORCEABLE UNDERTAKING dated
.f.] ..Q..~ -~ --- 2011 Given by Super A-Mart Ply Ltd (ABN 65009810324, ACN 009810324) to The Commonwealth of Australia (as represented by the Office of the Fair Work Ombudsman) concerning contraventions of Commonwealth Workplace Laws Fair Work lnfoline: 13 13 94
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ABN: 43 884 188 232
Details
Parties
FWO
Name
Commonwealth of Australia (as represented by the
Office of the Fair Work Ombudsman)
ABN
43 884 188 232
Address
Super A-Mart
Recitals
The Fair Work Ombudsman
GPO Box 9887
Brisbane, Queensland, 4001
Telephone
(07) 3404 4786
Fax
(02) 6276 7173
Attention
Russell Jacob
Director- Regional Services and Targeting
(Queensland)
Name
Super A-Mart Ply Ltd
ACN
009810324
Incorporated in
Queensland
Address
2189 Ipswich Road, Oxley, Queensland 4075
Telephone
(07) 3379 091 0
Fax
(07) 3379 0791
Attention
Nik Wyman - Chief Financial Officer
A
On 11 January 2010, the Office of the Fair Work Ombudsman
(FWO) commenced an investigation into allegations that Super A­
Mart Pty Ltd had contravened Commonwealth workplace laws.
B
By reason of the matters set out in Attachment "A" (Background),
the FWO has determined, and Super A-Mart Ply Ltd acknowledges,
that Super A-Mart Pty Ltd contravened Commonwealth workplace
laws.
C
The parties have agreed to resolve the contraventions without the
need to resort to civil penalty litigation by way of this Enforceable
Undertaking (EU) made pursuant to section 715 of the Fair Work Act
2009 (FW Act).
Governing
law
Commonwealth
Date of
agreement
The dates the parties execute this EU. See Signing Page of this EU.
General terms
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1
Admission of contravention
By reason of the matters described in Attachment "A" (Background), which are
admitted without demur by Super A-Mart Pty Ltd that Super A-Mart Pty Ltd
contravened Commonwealth workplace laws in the respects set out in Attachment "B"
(Contraventions).
2
Limit of admission
2.1 The FWO acknowledges that the terms of this EU:
(a) are solely for the purposes of resolving the FWO investigation into the
Contraventions; and
(b) must not be interpreted as an admission by Super A-Mart Pty Ltd of liability for
any matter, other than as expressly provided in this EU.
2.2 No assertion or matter in this EU may be relied upon as an admission by any person
to support a cause of action in any other civil penalty proceeding.
2.3 However, this term does not prevent any matter in this EU being relied upon in future
proceedings in order to inform a relevant Court or tribunal of the details of the
conduct that was the evidentiary foundation for Super A-Mart Pty Ltd entering into
this EU.
2.4 This means that the FWO reserves the right to rely on the terms of this EU and the
admissions in respect of any future proceedings brought by the FWO against Super
A-Mart Pty Ltd in relation to any future contraventions of Commonwealth workplace
laws.
3
Enforceable undertakings
Super A-Mart Pty Ltd NOW UNDERTAKES that, in consideration of the FWO
agreeing not to apply for any orders under Commonwealth Workplace laws in relation
to the Contraventions (as evidenced by the FWO's acceptance of this EU endorsed
below), Super A-Mart Pty Ltd must do all those activities and things set out in
Attachment "C" (Undertakings).
4
Commencement of enforceable undertaking This EU comes into effect when: (a) the EU is executed by Super A-Mart Pty Ltd; and
(b) the FWO accepts the EU executed by Super A-Mart Pty Ltd (as evidenced by
the FWO's acceptance of this EU endorsed below) .
5
Acknowledgements Super A-Mart Pty Ltd acknowledges that: (a) the Undertakings it has given in this EU are reasonable in the circumstances;
(b) this EU is given to and accepted by the FWO pursuant to section 715 of the
FWAct;
(c) the FWO may:
(i) make this EU (and any of the Attachments) available for public
inspection, including by posting it on the FWO internet site at
www.fwo.gov.au (subject to the FWO taking any necessary steps to the
retraction of the names of any person affected by the Contraventions) ;
(ii) release a copy of this EU (and any of the Attachments to it) pursuant to
any relevant request under the Freedom of Information Act 1982 (Cth);
(iii) from time to time, publicly refer to the EU (and any of the Attachments to
it) and its terms;
(iv) rely upon the admissions made by Super A-Mart Pty Ltd in paragraph 1
above in respect of any decision about enforcement action to be taken in
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respect of any future non-compliance by the Super A-Mart Pty Ltd with
Commonwealth workplace relations obligations.
(d) consistent with the Note to subsection 715(4) of the FW Act, this EU in no way
derogates from the rights and remedies available to any other person arising
from the conduct set out in this EU; and
(e) if Super A-Mart Pty Ltd contravenes any of the terms of this EU:
(i) the FWO may apply to any of the Courts set out in subsection 715(6) of
the FW Act, for orders under subsection 715(7) of the FW Act; and
(ii) this EU may be provided to the Court as evidence of the admissions
made by Super A-Mart Pty Ltd in paragraph 1, and also in respect of the
question of costs; and
(iii) this EU is to be taken as having been withdrawn by Super A-Mart Pty
Ltd for the purposes of subsection 715(3) of the FW Act if the FWO
gives its written consent (in which case the FWO may apply for orders
against Super A-Mart Pty Ltd and/or related parties under Division 2 of
Part 4-1 of the FW Act).
6
No inconsistent statements Super A-Mart Ply Ltd: (a) must not; and
(b) must ensure that each of its officers, employees or agents, do not,
make any statement, orally or in writing, or otherwise which conveys or implies or
reasonably conveys or implies anything inconsistent with admission or
acknowledgements contained in this EU.
7
Termination by the FWO
At any time, the FWO may, by notice in writing, terminate this EU with 7 days written
notice if Super A-Mart Pty Ltd commit, in the opinion of the FWO, a serious or
persistent breach or non-observance of a term or terms of this EU provided that such
breach or non-observance is referred to in the notice.
8
Withdrawal from or variation to this EU
Consistent with subsection 715(3) of the FW Act, Super A-Mart Pty Ltd may withdraw
from or vary this EU at any time, but only with the consent of the FWO.
9
Continuing obligations
9.1
General survival
Any provision of this EU remaining to be performed or observed by Super A-l\llart Ply
Ltd or having effect after the cessation of this EU for whatever reason (including
termination by the FWO or withdrawal by Super A-Mart Ply Ltd) remains in full force
and effect and is binding on Super A-Mart Pty Ltd after this EU ends.
9.2
Survival
Without limiting the generality of clause 9.1 (General Survival), the following clauses
survive termination of this EU for whatever reason (including termination by the FWO
or withdrawal by Super A-Mart Ply Ltd):
(a) Clause 1 (Admissions and contraventions); and
(b) Clause 6 (No inconsistent statements).
10
Legally binding agreement
-­-----------­-­-­-­-­-­---- -----------­
These terms are intended to have immediate effect on all parties upon acceptance by
the FWO of this EU (as evidenced by the FWO's acceptance of this EU endorsed
below).
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11
Entire agreement
This Agreement constitutes the entire agreement of the parties about its subject
matter and supersedes all previous agreements, understandings and negotiations on
that subject matter. No oral explanation or information provided by either party to the
other:
(a) affects the meaning or interpretation of this EU; or
(b) constitutes any collateral agreement, warranty or understanding between the
FWO and Super A-Mart Pty Ltd .
12
No representations or warranties
Super A-Mart Pty Ltd acknowledges that in entering into this EU they have not relied
on any representations or warranties about the subject matter of this EU except as
provided in this EU.
13
Construction
No rule of construction applies to the disadvantage of a party because that party was
responsible for the preparation of, or seeks to rely on, this EU or any part of it.
14
Costs
14.1
The parties must pay their own legal and other costs and expenses in connection
with the preparation, execution and completion of this EU and other related
documentation.
15
Severance
If the whole or any part of a provision of this EU is void, unenforceable or illegal in a
jurisdiction it is severed for that jurisdiction. The remainder of the agreement has full
force and effect and the validity or enforceability of that provision in any other
jurisdiction is not affected. This clause has no effect if the severance alters the basic
nature of this EU or is contrary to public policy.
16
Competency Super A-Mart Pty Ltd acknowledge that: (a) before executing this EU, Super A-Mart Pty Ltd was given the opportunity to
seek independent legal and other advice of their choice ;
(b) in the light of any advice provided to Super A-Mart Pty Ltd , they considered
their position;
(c) if Super A-Mart Pty Ltd has been advised by their solicitors, they have been
advised by them as to the terms of this EU; and
{d) Super A-Mart Pty Ltd fully understand the effect of this EU.
17
Governing law
This EU is governed by the law in force in the place specified in the Details. Each
party submits to the non-exclusive jurisdiction of the courts of that place.
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Signing page
Dated:
1-4 /10 jn .
EXECUTED by Super A-Mart Pty Ltd in
accordance with subsection 127 ( 1) of the
Corporations Act 2001 (Cth):
(Signature of
(Signature of Director)
g:tzi~)~ 9?~ ·
N 'ko/a..i tJjtNM. .
(Name of Director in Full)
(Name of Director in Full)
ACCEPTED by the FAIR WORK OMBUDSMAN
~
NICHOLAS PAUL WILSON
FAIR
WORK
---- -- ------ ----OMBUDSMAN
- -- -- ---- -- - - -- ------ --- - ~
-- --- ---- ­
or by his Delegate subject to the
instrument of delegation made pursuant
to section 683 of the FW Act and
executed by Nicholas Paul Wilson on
..................... 2011 Fair Work lnfoline: 13 13 94
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ATTACHMENT "A" (BACKGROUND)
1. Super A-Mart Pty Ltd has about 32 retail sites throughout Queensland, New South
Wales, South Australia, Victoria and Western Australia and is primarily in the
business of selling domestic furniture.
2. Following the admission of contraventions in response to a particular complaint
received by a former employee and in accord with a request from the FWO, Super A­
Mart Pty Ltd conducted a 'Self Audit' regarding work practices at their stores and
identified that in many instances employees had not been paid for all time worked.
This occurred as a result of work practices in most stores that employees were to:
a. be at their place of work prior to their start time and after their shifts
concluded, and
b. attend sales meeting outside of paid work time.
3. These contraventions occurred due to a breakdown in management communication.
Management of Super A-Mart Pty Ltd had taken steps to rectify these practices. In
light of their continuation, these steps were insufficient to prevent the contraventions
occurring.
4. Super A-Mart Pty Ltd has at all times, worked closely with the FWO to identify the
contraventions and has at all times during the course of the investigation indicated its
willingness to make back payment to the affected employees.
5. An extensive audit was conducted by Super A-Mart Pty Ltd which covered a period in
excess of 6 years. This period exceeds the legislative period within which the FWO
could recover the back payments if the matter were to proceed to litigation.
6. The audit revealed that Super A-Mart Pty Ltd had underpaid 877 former and current
employees approximately $1,376,281 during a seven year period (the relevant
period). While Super A-Mart Pty Ltd did provide benefits and entitlements to
employees (specifically access to a commission payment regime) during this period
which in many cases meant employees were, overall, better off, Super A-Mart Pty ltd
acknowledges that it cannot, in the absence of a clear contractual offset mechanism,
rely upon these incentive payments to offset its wage liabilities.
7. During the relevant period, Super A-Mart Pty Ltd was bound to the Notional
Agreement Preserving a State Award (NAPSA) informed by the Retail Industry Award
State 2004 during the period 26 March 2006 to 30 June 2009, the Award Based
Transitional Instrument Retail Industry Award State 2004 during the period 1 July
2009 to 31 December 2009 and the General Retail Industry Award 2010 from 1
January 2010.
8. By contravening the Awards and Acts as specified in Attachment "B" of this EU,
Super A-Mart Pty ltd employees were underpaid their entitlements.
9. The Respondent admits the contraventions set out in Attachment "B" of this
enforceable undertaking.
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ATTACHMENT "B" (CONTRAVENTIONS)
1. Between 26 March 2006 and 30 June 2009 Super A-Mart Pty Ltd failed to pay
employees for all time worked and as such has contravened the following :
a. Section 182 of the Workp/ace Relations Act 1996 which provides for the, Guarantee
of APCS basic periodic rates of pay.
b. Clause 6.2.1 of the Notional Agreement Preserving a State Award (NAPSA)- namely
the Retail Industry Award State 2004 (Overtime).
c. Clause 6.2.2 of the Notional Agreement Preserving a State Award (NAPSA) informed
by the Retail Industry Award State 2004 (Sunday Overtime).
2. Between 1 July 2009 to 31 December 2009 Super A-Mart Pty Ltd failed to pay employees
for all time worked and as such has contravened the following:
a. Schedule 16 Part 5 of the Fair Work (Transitional Provisions and Consequential
Amendments) Act 2009 - Compliance with transitional APCSs, the transitional FMW
and transitional special FMWs.
b. Schedule 16 Part 2 Fair Work (Transitional Provisions and Consequential Amendments) Act 2009- Compliance with transitional instruments. c. Clause 6.2.1 of the Award Based Transitional Instrument Retail Industry Award State
2004 (Overtime) .
d. Clause 6.2.2 of the Award Based Transitional Instrument Retail Industry Award State
2004 (Sunday Overtime).
3. Between 1 January 2010 and 5 March 2010 Super A-Mart Pty Ltd failed to pay
employees for all time work as such has contravened the following;
a. Section 45 of the Fair Work Act 2009 contravening a modern award specifically :
Clause A.2 .3 of the General Retail Industry Award 2010 (Minimum Rate of Pay).
Clause 29.2 of the General Retail Industry Award 2010 (Overtime (excluding
shiftwork)).
Clause 29.4(c) of the General Retail Industry Award 2010 (Sunday work).
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ATTACHMENT "C" (UNDERTAKINGS)
Super A-Mart Pty Ltd undertakes to:
Future workplace relations compliance
1. Ensure that it complies at all times and in all respects with the FW Act, industrial agreements and/or workplace laws which apply to it by developing systems and processes to ensure ongoing compliance with Commonwealth workplace laws. 2. Provide to the FWO, within 28 days of the date of this EU, details of the implementation of systems and processes designed to ensure ongoing compliance with Commonwealth workplace laws. Make good underpayment
In this and other sections, affected employees means current and former employees who
were underpaid by Super A-Mart Pty Ltd (Affected Employees).
3. Pay all outstanding amounts owed in underpayments to the affected employees no later than two months after executing this EU and provide proof of such payment to the FWO no later than 7 days after all the payments are made. 4. If the underpaid employee/employees cannot be located, pay any outstanding amount
into the consolidated revenue of the Commonwealth of Australia (through the FWO) to be
held on trust for the relevant underpaid employee/employees.
Apologies
5. Write and send to all Affected Employees within 28 days of executing this EU, a letter
advising them of the EU; in the form of Attachment "D" to this EU, signed by the Chief
Executive Officer and Chief Financial Officer of Super A-Mart Pty Ltd.
Paid meeting of affected employees
6. Conduct a paid meeting for existing employees who were affected by the underpayment.
At the meeting Super A-Mart Pty Ltd must explain the rectification of the underpayment.
Super A-Mart Ply Ltd must invite a representative of the FWO to attend the meeting to
explain this EU.
Payment to not for profit organisation
7. Pay an amount of $120,000 to the Working Women's Centre Queensland to assist with
the promotion of compliance with Commonwealth workplace relations laws, within 14
days of the execution of this EU.
Workplace notice
8. Issue a memo to all employees of Super A-Mart Pty Ltd within Australia, within 28 days of
executing this EU, in the form of Attachment "E" to this EU signed by the Chief Executive
Officer, and Chief Financial Officer of Super A-Mart Pty Ltd (the notice).
9. Ensure the notice is printed in at least A3 size and clearly displayed at each store
operated by Super A-Mart Pty Ltd for a period of at least 30 days:
(a) in a location to which all staff at each store have access; and
(b) in a manner which is reasonably capable of drawing the notice to the general
attention of all staff (for example, by placement on a staff noticeboard).
Social media notice
10. Within 28 days of executing this EU, cause to be placed on the Super A-Mart Pty Ltd
website (at www.superA-Mart.com.au) a notice which is in the form of Attachment "E" to
this EU. The notice must remain on the identified website or web pages for a period of at
least 30 days.
Public notice
11. Within 28 days of executing this document (or so soon afterwards as is available) cause
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a notice to be placed in the Saturday edition of the The Australian Newspaper.
12. The notice must:
(a) bear the company name of Super A-Mart Ply Ltd;
(b) bear the company logo (if any) of Super A-Mart Pty Ltd ;
(c) appears on either of pages 3, 5 or 7 of the relevant edition;
(d) measures at least 15cms high x 7.4cms wide; and
(e) be in the form of Attachment "E" to this EU;
Preparation of workplace relations compliance manual
13. Commission the preparation, by a suitably qualified legal practitioner with expertise in
workplace relations law, of a workplace relations compliance manual for distribution to
each of its officers and employees.
Workplace relations compliance training
14. Within two months of the execution of this EU, organise and ensure all store managers
attend a training course (the training course) which provides an overview of the rights
and responsibilities of employers under the FW Act. The training course must be
conducted by an accredited workplace trainer (not being anyone who has advised Super
A-Mart Pty Ltd in relation to the subject matter of the Contraventions) who is approved by
the FWO and paid for by Super A-Mart Pty Ltd .
15. Provide the training materials used in the training course to the FWO no later than 14
days before the training is to be conducted . The training materials must be approved by
the FWO.
16. Provide evidence of attendance by store managers at the training course to the FWO
within 7 days of the training being provided.
Future workplace relations compliance audit activity
17. Cause to have performed by an accounting professional (e.g. Certified Practicing
Accountant) or audit specialist (at its own expense), on an annual basis for the next 3
years after the date of this EU, an audit of its compliance with Commonwealth workplace
laws, in particular compliance relating to pay and conditions of employees . The first audit
is to be conducted within 2 months of the execution of this EU. The remaining audits are
to be completed by 31 August 2012 and 31 August 2013.
18. Provide to the FWO the audit report within 7 days of the audit report being finalised.
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ATTACHMENT "D"
Super A-Mart Pty Ltd letterhead
Third party details
Insert address
To <insert persons name>
I am writing to let you know about the outcome of an investigation by the Office of the Fair
Work Ombudsman (FWO).
The FWO's investigation prompted Super A-Mart Pty Ltd's subsequent 'self audit' which
looked at the underpayment of a significant number of former and current employees which
occurred during the period 26 March 2003 to 5 March 2010.
Following its investigation, the FWO alleged that Super A-Mart Pty Ltd was in contravention
of workplace relations laws by failing to pay employees for all time worked.
Super A-Mart Pty Ltd has formally admitted to the Fair Work Ombudsman, after conducting
its audit, that it underpaid a large number of employees.
These underpayments arose because in some stores, employees were required to attend work without being paid . This occurred when employees were required to attend team meetings and be at stores prior and after their rostered shifts . These contraventions occurred due to a failure in management communication. Super A-Mart has given an undertaking to repay all underpayments. You may have already received your rectification payment. Super A-Mart Pty Ltd expresses its sincere regret and apologises to you for failing to comply with its lawful obligations. Furthermore, Super A-Mart Pty Ltd gives its commitment that this issue will not arise again. Regards Chief Executive
Chief Financial Officer
Officer Fair Work lnfoline: 13 13 94
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ATTACHMENT "E"
The Orfice of the Fair Work Ombudsman (FWO) has investigated allegations that Super A­
Mart Pty Ltd contravened workplace laws during the period 26 March 2003 to 5 March 2010.
The allegations were that Super A-Mart Pty Ltd failed to pay a significant number of former
and current employees for all time worked.
These underpayments arose because in some stores, employees were required to attend
work without being paid. This occurred when employees were required to attend team
meetings and be at stores prior and after their rostered shifts.
These contraventions occurred due to a failure in management communication.
Super A-Mart Ply Ltd has formally admitted to the FWO that it did in fact contravene
workplace laws by failing to pay affected employees .
An Enforceable Undertaking has been given by Super A-Mart Pty Ltd to the FWO to reflect
these formal admissions (that Enforceable Undertaking is available at www.fwo.qov.au).
Super A-Mart Ply Ltd expresses its sincere regret and apologises for any inconvenience this
omission has caused. Furthermore, Super A-Mart Ply Ltd gives its commitment that such
conduct will not occur again and that it will comply with Commonwealth workplace relations
laws in the future.
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ABN: 43 884 188 232