The Fair Work Commission hears the Apple EA approval

The Full Bench of the Fair Work Commission scheduled a Hearing to address several concerns the Commission raised. While the Commission may have raised concerns, Apple, the ASU and other unions were provided with the opportunity to respond and express views about whether the Proposed Agreement overall provides better entitlements than the General Retail Industry Award 2020 (Retail Award) and Clerks— Private Sector Award 2020 (Clerks Award) which are the industrial minimums that the Commission must assess the Agreement against. This process is a regulatory check, it isn’t an opportunity to continue arguing for things we didn’t win in bargaining.

The following was raised:

1. The correct expiry date:
   
   The Agreement specifies an expiry date of 4 years from the operative date. However, according to the Fair Work Act, an Agreement's expiry date must be at most 4 years from its approval date. Apple has provided an Undertaking (a legal promise) that the Agreement's nominal expiry date is 4 years from the date the Fair Work Commission approves the Agreement.
   
   
2. Does Apple employ shift workers for the purposes of the National Employment Standards?
   
   While the Agreement grants additional leave to shift workers, it lacks a clear definition of a shift worker as outlined in the Retail and Clerks awards. The Full Bench raised that this may be inconsistent with the Fair Work Act.
   
   Apple has said this isn’t an issue because Apple has never and currently does not continuously roster shifts 24 hours a day 7 days a week as required by the Retail Award or Clerks Award. We argued for additional annual leave during bargaining but didn’t win it. Unfortunately, Apple doesn’t need to grant additional leave to meet the minimum industry standards.
   
   
3. Flexibility Term:
   
   The Agreement allows for the termination of an individual flexibility agreement (IFA) with 13 weeks' written notice, contrary to the Fair Work Act, which mandates a 28-day notice. The Commission will insert the model flexibility term into the Agreement if approved.
   
   
4. Retail Award specific topics
   
   a. Span of Hours: The Agreement lacks a specified span of hours for Retail team employees, potentially impacting the lowest paid compared to the Retail Award.
   
   b. Max Daily Hours: The Agreement provides that retail team members will be scheduled to work a maximum of 10 hours per shift. The Retail Award provides a maximum number of ordinary hours of 9 hours per shift; however, employees may work up to 11 ordinary hours on one day per week. The increased daily hours may present a concern for some of the lowest-paid employees compared to the Award.
   
   c. Exemption - Apple Solutions Consultant Sales (ASC Team Member): The Agreement provides an exemption for ASC Team employees with an actual rate of pay of $80,000 or more. Given the Agreement's silence on commissions, this exemption's impact on employee benefits needed to be clarified.
   
   
5. Clerks Award
   
   a. Span of Hours: The Agreement proposed varying spans of hours for different work groups. A Level 1 AppleCare team member who consistently works outside of the span of hours, including on weekends, for example, may not be considered better off overall as the rates of pay need to be higher to compensate when compared against the Clerks Award
   
   b. Sunday Penalties: The Agreement offers Sunday penalties different from those in the Clerks Award, which may affect casual employees working ordinary hours on Sundays and who may not be better off overall compared to the Award.

Apple has proposed an Undertaking (enforceable promise) for the Commission to consider, which is likely to be accepted, that addresses the concerns in the Clerks Award, specifically:

1. Level 1 and Level 2 Casual AppleCare Team Members, Level 1 Casual Retail Customer Care Team Members and Level 1 Casual Facilities and Administration Team Members who work on a Sunday and
   
   
2. Level 1 and Level 2 Part-time AppleCare Team Members and Level 1 Part-time Retail Customer Care Team Members who work less than three days a week, including a Sunday, will be paid for time worked on a Sunday, an amount per hour no less than the hourly rate payable for their relevant classification under the Clerks Award (as amended from time to time).

The Hearing occurred on Monday, 25 September, and the Full Bench has reserved its decision. We will update members once the Commission makes its final decision. We can’t tell you how long that will be, but the Commission has set benchmarks to approve enterprise agreements as quickly as possible.