Deputy President Geoff Bull considered Kikki.k's "mirroring" clause was "potentially detrimental to employees" because it could lead to reductions in pay during the life of the agreement.

Better overall

However, he declared the agreement passed the so-called "better off overall test" after Kikki.k undertook to increase base hourly rates between 5.7 and 6.3 per cent above the 2015-16 award rate.

The Deputy President also raised concerns employees had not "genuinely agreed" to the clause, which was voted up before the commission cut award penalties in February.

The company argued the clause was "clear on its face", although it said it had only advised staff the agreement changes were "essentially administrative in nature" with some changes to base rates.

Mr Bull ruled the company's actions to explain the agreement were "reasonable" and a "practical approach needs to be adopted" to requirements for "genuine" agreement.

"The mirroring provision is clearly contained in the agreement under the heading Award Changes and employees were provided with the opportunity to ask questions relating to the agreement."

He also approved clauses that removed overtime penalties if employees agreed to work the hours but only after Kikki.k undertook to restrict the practice to two hours overtime per week.


Mirror

Australian Industry Group workplace policy head, Stephen Smith, said the mirroring clause, previously used for rate increases and decreases during the 2008 award modernisation, would allow employers on agreements to experience the same cuts as those on the award.

"Most likely a similar approach will be taken in numerous other enterprise agreements in the retail, fast-food and hospitality industries, to avoid leaving businesses covered by these enterprise agreements in an uncompetitive position compared to those businesses that are covered by the award."

Employee Relations Strategies director Steve Champion said the decision "seems to be a very marked departure from that very obstructionist approach shown by some other commissioners".

While it was not clear whether the decision was a return to a "more flexible" pre-Coles approach, he said "it does offer promise of hope".

However, Retail and Fast Food Workers Union secretary Josh Cullinan said Kikki.k's advising of staff was "not good enough" and the "substantial" undertakings were "effectively the commission negotiating the agreement".

"Our view is that workers need to know what they're voting for."

The commission will hold a hearing on May 9 on how to phase in award cuts for retail, hospitality and fast food, with unions calling for its decision to be overturned.