Aerocare Flight Support Pty Ltd T/A Aerocare

[2019] FWC 8614

[2019] FWC 8614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aerocare Flight Support Pty Ltd T/A Aerocare
(AG2018/2008)

COMMISSIONER WILSON MELBOURNE, 20 DECEMBER 2019

Application for approval of the Aerocare Collective Agreement 2018.

1. INTRODUCTION

[1] This decision concerns an application for the approval of an enterprise agreement by Aerocare Flight Support Pty Ltd now known as Swissport Australia Pty Ltd 1 (referred to interchangeably in this decision as Aerocare and Swissport). The application is made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act) and seeks approval of the Aerocare Collective Agreement 2018 (the Agreement or the 2018 Agreement).

[2] For the reasons set out below, I am satisfied that the Agreement meets all legislative requirements, with the exception that I am not satisfied the Agreement as it stands passes the better off overall test (BOOT). I am, however, prepared to consider its approval with further undertakings to be given by Aerocare which meet all relevant tests within s.190. Through this decision I issue Directions for the filing of such undertakings if the Applicant is prepared to give them.

2. ARRANGEMENT OF THE DECISION

[3] This decision is arranged as follows;

1. INTRODUCTION

2. ARRANGEMENT OF THE DECISION

3. BACKGROUND

4. EVIDENCE AND MATERIALS BEFORE THE COMMISSION

5. BACKGROUND

6. APPLICABLE LEGISLATION

7. PRE-APPROVAL MATTERS

7.1 Genuine agreement

7.2 Definition of shiftworker for the purposes of the NES

8. CONSIDERATION – MATTERS ASSOCIATED WITH THE BOOT

8.1 The BOOT generally/approach to loaded rates

8.2 Aerocare’s submissions on BOOT

8.3 Aerocare responses to initial FWC ‘concerns’/union objections

Span of hours/overtime

Hours of work/minimum engagement

Shift penalties

Shift swaps/ vacated shifts

Meal/crib times

Annual leave loading

Allowances

Part-time overtime

Split-shifts

Rates of pay

Additional benefits

8.4 The TWU and ASU submissions on BOOT

The evidence relied upon for the BOOT analysis

Split-shifts

Higher wage rates should not be accepted as satisfying the BOOT

Rates of pay

Penalty and shift rates

Part-time employees

Split-shifts

Meal/Crib Breaks and Part-time/Casual Minimum Engagements

Expert reports

8.5 Classification matching

8.6 “Test time” contentions in this matter

8.7 Split shifts

8.8 Part time employee specific entitlements

8.9 Casual employees’ specific entitlements

8.10 Saturday and Sunday penalties and overtime

8.11 Early morning, afternoon and night penalties / Pre-dawn shift allowance

8.12 Shift swaps and vacated shifts

8.13 Allowances and other entitlements including annual leave loading

8.14 Consideration of the Aeorcare BOOT materials

9. AEROCARE UNDERTAKINGS

10. THE COMMISSION’S BOOT MODELLING

10.1 Matters relevant to the Commission’s BOOT considerations

10.2 Commission modelling – preliminary matters

What the modelling does not take account of

10.3 Relevant Agreement content

10.4 The Commission’s modelling methodology

10.5 The modelling undertaken by the Commission

First round of Commission modelling

Further round of Commission modelling

10.6 Impact on BOOT of other features of the 2018 Agreement; financial and non-financial

10.7 Consideration of ANMF v Domain Aged Care (QLD) Pty Ltd T/A Opal

10.8 Conclusions on the Commission’s BOOT modelling

11. Proposed further undertakings

11.1 Additional undertakings sought

11.2 Whether financial detriment or substantial change

12. CONCLUSION

ATTACHMENT 1 – TRANSLATING CLASSIFICATIONS

ATTACHMENT 2 – 2018 AGREEMENT – SCHEDULE A- CLASSIFICATIONS & REMUNERATION TABLE

ATTACHMENT 3 – RELEVANT EXTRACTS FROM THE GROUND STAFF AWARD

ATTACHMENT 4 – AEROCARE UNDERTAKINGS – 6 AUGUST 2019

ATTACHMENT 5 – EXAMPLES OF COMMISSION MODELLING

5.1 – Employee BN3632 – First round modelling

5.2 – Employee BN3632 – Further modelling.

5.3 – Employee GP3584 – First round modelling.

5.4 – Employee GP3584 – Further modelling.

3. BACKGROUND

[4] While both the Australian Municipal, Administrative, Clerical and Services Union (ASU) and Transport Workers’ Union of Australia (TWU) seek to be covered by the 2018 Agreement should it be approved, both unions oppose approval on numerous grounds including that the Agreement does not pass the BOOT and that it has not been genuinely agreed to given circumstances surrounding voting for the Agreement.

[5] While the matter was lodged on 15 May 2018 an application to stay proceedings until determination of a Federal Court matter Swissport Australia Pty Ltd v ASU (No.3) 2 on the applicability of split shifts under the Airline Operations – Ground Staff Award 2010 (Ground Staff Award) was granted given its relevance to the current proceedings on 4 October 2018.3 After a judgement was provided by the Federal Court on 25 January 2019, Directions for filing in the current matter were issued on 4 February 2019. The matter was then the subject of two sets of applications for orders to produce documents by the TWU and ASU which were determined by way of consent orders on 30 April and 5 June 2019. The matter then proceeded to hearing before me on 26 June, 27 June and 7 August 2019, on which date the decision in the matter was reserved. On 4 October 2019, after initial consideration of the evidence, and in particular the many hundreds of A3 pages of BOOT supporting material provided by Aerocare printed in a very small font size, I called for the Applicant to provide to the Fair Work Commission (the Commission) a subset of its BOOT data for the purposes of further and more detailed BOOT analysis. That additional material was provided on 17 October 2019.

[6] Also relevant to the background chronology of this matter is that on 6 August 2019 Senior Deputy President Hamberger determined under s.225 of the Act that the Aero-Care Collective Agreement 2012 4(the2012 Agreement) should be terminated with effect from 6 February 2020.5

[7] Mr Frank Parry, QC and Mr Matthew Follet of Counsel instructed by Ms Lucienne Mumme of Johnson Winter and Slattery appeared for Aerocare, while Mr Mark Gibian, SC instructed by Mr Michael Doherty of Michael Doherty Legal appeared for the TWU and Mr Michael Robson appeared for the ASU. Permission for Aerocare and the TWU to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

4. EVIDENCE AND MATERIALS BEFORE THE COMMISSION

[8] Evidence in these proceedings was led by Mr Gregory Shelley, General Manager, Employees Relations of Swissport Australia Pty Ltd and Ms Siobhan Hennessy, Partner, Price Waterhouse Coopers for the Applicant. For the Unions evidence was provided by Ms Therese Walton, National Industrial Officer/Negotiator for the TWU, Mr Shane O’Brien Director of Aviation Campaigns for the TWU and Mr Matthew Norrey, ASU Victorian Branch Secretary.

[9] Ms Hennessy’s evidence included two reports prepared by her firm on the subject of the BOOT, and in support of the matters referred to within her reports, Aerocare also provided the BOOT data used to compile the two PwC reports.

5. BACKGROUND

[10] Context to the application includes that Aerocare previously lodged the Aerocare Collective Agreement 2017 (the 2017 Agreement) in the Commission on 24 April 2017, to replace the Aero-Care Collective Agreement 2012 6(the 2012 Agreement).

[11] The application to the Commission for approval of the 2017 Agreement was also objected to by the TWU and ASU including for the reasons that the group of employees it covered was not fairly chosen and that the Agreement did not pass the BOOT. On 31 August 2017, I issued a decision dismissing the application on the basis that the 2017 Agreement was not genuinely agreed since the group of employees was not fairly chosen given that it excluded casual employees and that it did not pass the BOOT. 7 That decision was appealed and upheld by a Full Bench of the Commission which dealt with the first two appeal grounds in a decision issued on 27 November 20178 and the final appeal ground in a decision issued on 8 December 2017.9 The matter was then the subject of review by the Full Court of the Federal Court but only with respect to the determination that the group covered by the 2017 Agreement was not fairly chosen. In finality, the Full Court upheld both the original and Full Bench decisions of the Commission on 15 May 2018.10

[12] Against this background, Aerocare began bargaining for the 2018 Agreement on 12 January 2018 and on the same date issued a Notice of Employee Representational Rights (NERR) to all employees to be covered by the Agreement by way of their internal intranet system “Aeronet” (s.173(3); s.181; s.186(2); s.188). 11 On 19 April 2018, employees were provided a copy of the Agreement and other material referred to in the Agreement (s.180(2)(a)) and provided a notice setting out the date, method and place for the vote, again by way of Aeronet with those employees on leave at the time being sent an SMS to their mobile phone alerting them to the information (s.180(3)).12 Between 25 January to 19 March 2018, the Chief Operating Office and Chief Executive Officer of Aerocare held meetings with employees to discuss drafts of the 2018 Agreement and seek their feedback, after which an explanatory statement was provided to all employees on 20 April 2018 explaining the terms of the Agreement and their effect and with employees being encouraged to speak to their Airport Manager, the Chief Operating Officer or the Chief Executive Officer if they had any queries or issues with the Agreement (s.180(5)).13 Commencement of the vote occurred on 27 April 2018, eight days after notification of the vote and a copy of the Agreement and relevant materials were provided to employees (s.173; s.181; s.181(2); s.182), with the Agreement being made on 1 May 2018 when 91% of employees who cast a valid vote voted to approve the Agreement.14 The Agreement was then lodged 14 days later in the Commission on 15 May 2018 (s.182(1); s.185(3)).

[13] In contrast to the 2017 Agreement, which did not cover casual employees, the 2018 Agreement covers both casual and permanent employees. 15 In each case, the Agreements are expressed to cover employees involved in ground handling services for various airlines at approximately 25 airports across Australia.16 The duties of employees covered by the 2018 Agreement are to provide ground handling and customer service functions for aircraft departures and arrivals.17 The Agreement covers three broad classes of employees, namely Permanent Secure employees (PSE’s), Casual employees (Casuals) and “Leader 3” employees. The latter group of employees is a legacy classification from previous Agreements, referring to full-time employees on annualised salaries on a level effectively equivalent to that of a Senior Supervisor classification under the 2012 Agreement.18

[14] Clause 9 and Schedule A of the 2018 Agreement set out the classifications of employees covered by the Agreement. Those classifications include Airline Service Trainee, Airline Service Agent, Advanced Airline Service Agent and Supervisors. Each of these classifications can be worked by either PSE’s or Casuals. There is then a separate classification for Leader 3 employees. The rates of pay for each classification are all-inclusive hourly rates loaded for shift work penalties and “all other allowances and loading not explicitly provided for elsewhere in this Agreement to which an employee may otherwise be entitled”. 19 The Form F17 Statutory Declaration provided by Aerocare indicates that the Agreement at lodgement would cover 2036 employees20 with 1872 of those employees being part time (92%) and 147 being casual (7%).21

[15] The reference Award for the purposes of the BOOT is the Ground Staff Award.

6. APPLICABLE LEGISLATION

[16] The Act prescribes the matters about which the Commission must be satisfied for approval of an enterprise agreement. Part 2 – 4, subdivision B, s.186 sets forth what it describes as the “general requirements” to be satisfied where the Commission is called upon to approve an agreement. That section provides in part as follows:

“When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

…

(d) the agreement passes the better off overall test.

The phrase “genuinely agreed” as employed in s 186(2)(a) is defined in s 188.”

[17] Section 193 of the Act provides the framework for assessing the BOOT as follows:

“Subdivision C—Better off overall test

193 Passing the better off overall test

When a non-greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

…

Test time

(6) The test time is the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.”

[18] Section 190 of the Act provides a mechanism for the Commission to accept undertakings to satisfy its concerns with s.191 provided the effect of such undertakings:

“190 FWC may approve an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and

(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.

Undertakings

(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

FWC must seek views of bargaining representatives

(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.

Signature requirements

(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.

191 Effect of undertakings

(1) If:

(a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and

(b) the agreement covers a single employer;

the undertaking is taken to be a term of the agreement, as the agreement applies to the employer.

(2) If:

(a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and

(b) the agreement covers 2 or more employers;

the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking.”

7. PRE-APPROVAL MATTERS

7.1 Genuine agreement

[19] The TWU submitted that the Agreement was not genuinely agreed on the basis that Aerocare had full knowledge of how employees voted leading to intimidation of employees. 22

[20] Aerocare oppose suggestions of impropriety during the voting process, submitting that the voting process took place through an automated voting system which sent an automated email response to a person after they voted. Aerocare contended that the confirmation email “was an unstaffed automatic email response which was not collated or accessed” by its other employees. 23

[21] Section 186(2)(a) of the Act requires enterprise agreements to be genuinely agreed to by the employees covered by the agreement, with s.188 providing when an agreement has been genuinely agreed to including that each employee has been asked to approve the agreement under subsection 181(1) with the agreement being made when a majority of those employees who cast a valid vote approve the agreement and that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees (s.188(1)(c)). The submissions from the TWU are slight in detail and were not developed in its evidence. Overall, there is insufficient evidence to make a finding that the matters complained of in the ballot process would cause the Agreement to have not been genuinely agreed. As a result, I do not make the finding invited by the TWU, and instead find that the ballot was conducted in such a way as to allow a finding of genuine agreement.

[22] As previously detailed, notification of the date, method and place of the vote was issued to employees on 19 April 2018 by way of Aeronet with employees who were on leave at the relevant time being sent an SMS to their mobile phone alerting them to the requisite information (s.180(3)). 24 The vote commenced on 27 April 201825 and concluded on 1 May 2018 with the Agreement being made on 1 May 2018 when 91% of employees who cast a valid vote voted to approve the Agreement.26 The Form F17 Statutory Declaration records that the proposed Agreement would cover 2,036 employees, of whom 1,889 cast a valid vote, with 1,727 voting in favour of making the Agreement.27 I therefore find that ss.180(1), 181(1) and 188(1)(c) of the Act have been complied with.

7.2 Definition of shiftworker for the purposes of the National Employment Standards (NES)

[23] In its early submissions the ASU raised an objection surrounding the failure of the Agreement to provide a definition of shiftworker for the purposes of the NES in accordance with s.196 and s.187(4) of the Act.  28

[24] The Aerocare Form F17 Statutory Declaration endeavoured to deal with this subject with the declaration that no term of the Agreement defines or describes an employee as a shiftworker and that its operations are not continuous, and employees would not be rostered continuously. As such “employees covered by the Agreement will not meet the definition of shiftworker in Clause 34.4 of the Modern Award”. 29

[25] A concern about the definition of shiftworker was raised by me in correspondence to the parties on 17 September 2018. Aerocare’s response reiterated its argument that while the Agreement provides for non-continuous shiftworkers, given that those employees do not work on a 24/7 roster they do not satisfy the Award definition of shiftworker and that in turn such does not enliven the requirement at s.196(1) and (2) of the Act which requires the Commission as a pre-requisite for approval of an enterprise agreement to be “satisfied that the agreement defines or describes the employee as a shiftworker for the purposes” of the NES.

[26] The approval pre-requisite stems from s.187(4) which provides that the Commission must be satisfied that the provisions of subdivision E of Division 4 of the Act have been complied with, with that obligation extending to s.196(2). Clause 34.4 of the Ground Staff Awardprovides that:

“For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week.”

[27] The 2018 Agreement itself does not provide a span of hours with Clause 12.3 stating that a PSE’s ordinary hours of work may be worked in a span (which may not be continuous) on any day of the week. However, Clause 11.2 provides that the company operates on a non-continuous basis, 7 days a week to meet the requirements of its customers carrier with the term “non-continuous” not defined within the Agreement. Overtime is payable to employees in accordance with Clause 16, with it being defined as work in excess of 12 hours in any one day; 20 days in the same roster or more than 152 hours in the same roster period. The start and finish times of work provided for in Clause 18 with those terms being determined through reference to an employees’ particular work area, work requirement and on an operational needs basis. The 2018 Agreement does not specifically provide for shift penalties since they are incorporated into hourly rates. In this regard, Schedule A prescribes the hourly rates of pay for employees and provides separate hourly rates for working Monday to Friday, Saturdays, Sundays and Public Holidays. An exception is provided for in Clause 22 which provides for a “pre-dawn shift allowance” for employees (other than Leader 3) who are rostered to perform duties between midnight and 6:00 AM, Monday to Friday.

[28] In summary, the 2018 Agreement provides through Clause 11.2 that Aerocare’s business operates on a non-continuous basis with that term not defined in the Agreement. Against this, the Agreement clearly contemplates weekend work and shift hours. However, it is also clear from the BOOT materials provided by the Applicant in support of its case that the current rosters do not set a 24/7 roster pattern. While it could be said that there is nothing in the Agreement restricting the future use of 24/7 continuous rosters such would be contrary to what is said at Clause 11.2. I also accept and rely upon Mr Shelley’s evidence that “Swissport’s operations do not operate on a 24/7 basis”. 30 Overall, I am satisfied that the current methods of working are unlikely to change in the foreseeable future, and certainly there is no evidence that suggests that such is not correct. Consequently, I am of the view that the Agreement does not cover continuous shiftworkers for the purposes of the NES in accordance with s.196 of the Act and therefore I find that no such definition is required.

8. CONSIDERATION – MATTERS ASSOCIATED WITH THE BOOT

[29] Consideration of the BOOT commenced with this Agreement in the usual way, so far as that term may be applied to this application, which is anything but usual. Having been lodged in the Commission on 15 May 2018 the TWU and ASU had filed Form F18 Statutory Declarations disputing that the 2018 Agreement should be approved, including for reason that it did not pass the BOOT. 31 After lodgement the application was first considered by the Commission’s staff, which provided a report to me dated 30 August 2018. On 17 September 2018, correspondence was sent by my Chambers to the Applicant and bargaining representatives advising the results of the Commission’s preliminary assessment (taking into account both the Commission staff report and the objections made by the TWU and ASU). The correspondence noted the contest between the parties and invited communication between the parties and the consideration of undertakings in an endeavour to deal with the matters in dispute and the concerns held by the Commission. On 4 October 2018, having been advised that Federal Court proceedings had been commenced on matters germane to the determination of this Application, I determined the application should be adjourned until such time as the Court had concluded its work.32 In February 2019, the Applicant requested the application be restored to my list for hearing and determination, after which Directions were issued and hearing dates set. In this case, the parties would have an opportunity to put their respective contentions in the course of their written submissions or a hearing.

[30] On the basis of the matters referred to earlier in this decision, the only issue remaining for determination is whether the 2018 Agreement passes the BOOT.

8.1 The BOOT generally/approach to loaded rates

[31] A “basic rule” provided for by s.186(1) and (2) of the Act is that before the Commission may approve an enterprise agreement it must be satisfied that the agreement passes the BOOT. In turn s.193(1) of the Act provides that a non-greenfields agreement passes the BOOT in the following circumstances;

“(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

[32] The 2018 Agreement is a loaded rates agreement, with rates “calculated to provide the employees the greatest benefits during the period Monday to Friday, where the bulk (approximately 75%) of the total number of shifts are worked”. 33 Each party accepted the principles established in Re Loaded Rates Agreements34 required application in this case.35 Relevant to assessment of the BOOT generally, as well as to the specific matters requiring consideration in this decision, the Full Bench in that matter summarised the Commission’s task as follows;

“[100] There are two well-established propositions concerning the application of the BOOT which may be derived from previous Full Bench decisions. The first, which is essentially a restatement of s 193(1), is that the BOOT requires a finding that each award covered employee and prospective employee would be better off under the agreement than under the relevant modern award. 36 The requirement that “each” such employee and prospective employee be better off overall is a rigorous one. The ordinary meaning of “each” is “every, of two or more considered individually or one by one”.37 Thus, every award covered employee or prospective employee must be better off overall, with the corollary that if any such employee is not better off overall, the relevant enterprise agreement does not pass the BOOT. Thus, in an agreement containing loaded rates in whole or partial substitution for award penalty rates, it is not sufficient that the majority of employees - even a very large majority - are better off overall if there are any employees at all who would not be better off overall.

[101] In the case of anything other than small employers, it would be an exhaustive task to examine the circumstances of each individual employee to reach a state of satisfaction that the BOOT is passed. Section 193(7) substantially relieves the Commission of this burden by permitting it to assume, if a class of employees to which a particular employee belongs would be better off under the agreement than under the relevant modern award, that the employees would be better off overall in the absence of evidence to the contrary. Paragraph 818 of the Explanatory Memorandum to the Fair Work Bill 2008 contains some information as to how this provision was envisaged to operate as follows (emphasis added):

“818. Although the better off overall test requires FWA to be satisfied that each award covered employee and each prospective award covered employee will be better off overall, it is intended that FWA will generally be able to apply the better off overall test to classes of employees. In the context of the approval of enterprise agreements, the better off overall test does not require FWA to enquire into each employee's individual circumstances.

Illustrative example

Moss Hardware and Garden Supplies Pty Ltd makes an enterprise agreement to cover approximately 1800 employees working at its national chain of retail garden and hardware supplies outlets. All of these employees are 'award covered employees'. The seven classifications under the agreement broadly correlate to seven classifications under the relevant modern award. Because there will be many employees within each classification under the agreement and the agreement affects each employee within a classification in the same way, FWA could group employees together when assessing the employees against the better off overall test. It is intended that FWA could assess a hypothetical employee in each of the classifications under the agreement against the relevant classification under the modern award.

If FWA were satisfied that the agreement affected each employee within the classification in the same way, and that the agreement passed the better off overall test for the hypothetical employee within the classification, FWA could be satisfied that the agreement passed the better off overall test for each award covered employee and prospective award covered employee within that classification.”

[102] Section 193(7) is not prescriptive as to the nature of the classes of employees that might be selected for the purpose of applying the BOOT, so that the Commission has to make an evaluative judgment in that respect. However the selection of a class for the purpose of s 193(7) will only be of utility if, as the emphasised parts of the above extract from the Explanatory Memorandum explain, the enterprise agreement affects the members of the class in the same way such that there is likely to be a common BOOT outcome. The example used is a class consisting of employees in a common classification, but in the case of an agreement providing for loaded rates this class would likely not be suitable if the employees in the classification worked a variety of roster patterns some of which attracted penalty rates under the relevant modern award and some of which did not. Such a class would have to be further divided into subclasses based on common patterns of working hours, taking into account evening, weekend and/or overtime hours worked, in order to apply the BOOT to a loaded rate remuneration structure which incorporated compensation and supplanted modern award penalty rates which would otherwise be applicable. Thus the effective application of s 193(7) to existing employees would necessarily require an examination of existing roster patterns worked by various categories of employees as at the test time.

[103] Greater difficulty potentially arises with respect to the requirement to apply the BOOT to every prospective award covered employee. This requires consideration of the position of potential employees to whom the agreement might apply in the future, and thus necessarily involves a degree of conjecture. In the case of an agreement applying to a defined workplace or workplaces in a substantial and mature business - for example, a major supermarket chain - the degree of conjecture may be small because it is safe to assume that any future employees will be employed on a type of roster pattern already applied in the business to an existing class of employees. That is, the Commission will be in a position to make sensible predictions about the basis upon which prospective employees might be engaged. However the position will necessarily be different where the business is small and/or still in a developmental stage or the agreement for which approval is sought permits employees to be engaged in a wider range of classifications, work locations and/or roster patterns than the workforce existing as at the test time. In that situation the basis of employment of prospective employees will not readily be able to be extrapolated from the characteristics of any identifiable classes in the existing workforce.”

[33] The same Full Bench explicitly rejected the submission that the Commission’s analysis in the case of a loaded rates arrangement should be limited to the material submitted at the time of the application;

“… that submission, which would amount to the Commission adopting a “don’t ask, don’t tell” policy, is rejected. The Commission has a statutory duty, subject to ss 189 and 190, to satisfy itself that an enterprise agreement meets the approval requirements specified in ss 186 and 187 before approving it. In the case of an agreement with a loaded rate remuneration structure, the Commission will consider the possible outcomes for employees and prospective employees working or being required to work a variety of roster patterns which are permitted by the terms of the agreement in assessing the BOOT. Also, for the reasons already explained, the Commission may require information about the patterns of working hours of current and prospective employees in order to assess whether the agreement passes the BOOT. If such information is not provided in the Form F17 statutory declaration (noting that the prescribed form does not in terms require the inclusion of such information), it may be necessary for the Commission to request the production of such information - even if no party appears before the Commission in opposition to the approval of the agreement.” 38

[34] After dealing with what these matters of principle and the well-established proposition, that the BOOT requires a finding that each award covered employee and prospective employee would be better off under the agreement than under the relevant modern award, the Full Bench turned to the proposition that the BOOT requires an overall assessment to be made, making the following findings;

“[112] The second proposition is that the BOOT requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement. 39 Where the terms required to be compared bear directly upon the remuneration of employees, the assessment is essentially a mathematical one. However the position becomes more complex when an agreement contains provisions superior to or not contained in the reference award conferring entitlements to non-monetary benefits, benefits which are accessible at the employee’s choice, or monetary benefits which are contingent upon specified events occurring. While it is necessary to take such entitlements into account in the BOOT assessment, ascertaining the value they are to be assigned may be a difficult task. This difficulty was adverted to in the Full Bench decision in National Tertiary Education Industry Union v University of New South Wales40in the following terms:

“[96] There is an obvious problem of comparing apples with oranges when it comes to including changes to non-monetary terms and conditions into the ‘overall’ assessment that is required by the BOOT. In such circumstances the Tribunal must simply do its best and make what amounts to an impressionistic assessment, albeit by taking into account any evidence about the significance to particular classes of employees covered by the Agreement of changes to non-monetary terms that render them less beneficial than the equivalent non-monetary term in an award.””

[35] It then established these principles for consideration of loaded rates agreements;

“[115] In summary, the following principles apply to the application of the BOOT to a loaded rates agreement:

(1) The BOOT requires every existing and prospective award covered employee to be better off overall under the agreement for which approval is sought than under the relevant modern award. If any such employee is not better off overall, the agreement does not pass the BOOT.

(2) Section 193(7) permits the Commission to assume that if a class of employees to which a particular employee belongs would be better off under the agreement than under the relevant modern award, then the employee would be better off overall in the absence of evidence to the contrary. However the selection of class for the purpose of s 193(7) will only be of utility if the agreement affects the members of the class in the same way such that there is likely to be a common BOOT outcome. If the Commission is not satisfied on the evidence that an existing or prospective award covered employee is not better off overall, the Commission cannot approve the agreement, at least not without undertakings or in the confined circumstances set out in s 189.

(3) The application of the BOOT to a loaded rates agreement will, in order for a meaningful comparison to be made, require an examination of the practices and arrangements concerning the working of ordinary and overtime hours by existing and prospective employees that flow from the terms of the agreement. This will likely require classes to be identified based on common patterns of working hours, taking into account evening, weekend and/or overtime hours worked.

(4) The starting point for the assessment will necessarily be an examination of the terms of the agreement in order to ascertain the nature and characteristics of the employment for which the agreement provides or permits. For example if an enterprise agreement makes express provision for employees to be required to work ordinary hours on weekends, those provisions cannot be ignored for BOOT purposes simply because the employer asserts it does not currently utilise those working hours or roster patterns.

(5) In the case of existing employees, this may involve an examination of existing roster patterns worked by various classes of employees as at the test time. The use of sample rosters to compare remuneration produced by a loaded rates pay structure compared to the relevant modern award may be an effective method of doing this. There may be objective evidence that a particular pattern of working hours or roster pattern permitted by an enterprise agreement is not practicable, or cannot or is unlikely to be worked.

(6) In the case of prospective employees, the assessment will necessarily involve a degree of conjecture. In the case of an enterprise operating at a defined workplace or workplaces, the Commission may be in a position to make sensible predictions about the basis upon which prospective employees might be engaged based on the roster patterns worked by existing employees. However if a business is small and/or still at the development stage, or the agreement would cover a wider range of classifications, work locations and/or roster patterns that are not in existence as at the test time, useful predictions may not readily be drawn from the way in which the existing workforce operates. In that situation the assessment will require an examination of the terms of the agreement in order to ascertain the nature and characteristics of the employment which the agreement provides for or permits.

(7) If the information concerning patterns of working hours needed to assess whether a loaded rates agreement passes the BOOT is not contained in the employer’s Form F17 statutory declaration accompanying the approval application, it may be necessary for the Commission to request or require the production of such information.

(8) The BOOT involves the making of an overall assessment as to whether an employee would be better off under the agreement, which necessitates identification of the terms in the agreements which are more and less beneficial to the employee than under the relevant award.

(9) The overall assessment required will essentially be a mathematical one where the terms being compared relate directly to remuneration. The assessment will be more complex where the agreement contains some superior entitlements which are non-monetary in nature, accessible at the employee’s option or which are contingent upon specified events occurring.

(10) In respect of non-monetary, optional or contingent entitlements in an agreement, the assumption cannot readily be made that they have the same value for all employees. In the case of a contingent benefit, it will be necessary to make a realistic assessment about the likelihood of the benefit crystallising during the period in which the agreement will operate.

(11) Where a loaded rates agreement results in significant financial detriment for existing or prospective employees compared to the relevant award, it is unlikely that a non-monetary, optional or contingent entitlement under the agreement will sufficiently compensate for the detriment for all affected employees such as to enable the agreement to pass the BOOT.”

[36] With respect to the Commission’s approach to the BOOT, the ASU argued that the Commission’s decision must be made on the Award and Agreement rates of pay that applied at 15 May 2018. That contention is dealt with in greater detail at a later point in this decision.

8.2 Aerocare’s submissions on BOOT

[37] In its submissions on the BOOT, Aerocare refer to the direction given by the Full Bench in Re Loaded Rates Agreements, 41 drawing from it that consideration of loaded rates involved an element of conjecture and guesswork and that the BOOT is necessarily hypothetical;

“9. The TWU’s fixation upon the supposed distinction between “actual rostering data” and “hypothetical working patterns” is misplaced. As was made clear in Re Loaded Rates Agreements, for any employer who has an agreement with a different pay structure to the underpinning award, “no meaningful comparison can be conducted” such that some degree of conjecture and guesswork is involved.

10. There are no rules as to the nature of the material to be relied upon in undertaking the conjecture and guesswork. In Re Loaded Rates Agreements, some examples are given: “working hours patterns actually worked”, “working hours patterns…reasonably capable of being worked” or “practices and arrangements…that flow from the terms of the agreement”.

11. The Full Bench rejected a submission that “indicative rosters” (not actual, merely indicative) should not be provided in appropriate cases, endorsed the approach taken in Hart v Coles Supermarkets Australia Pty Ltd, 42 which involved one selected roster period for a mere two stores (which were said to be “generally representative” of “most Coles stores”) and which looked at the question from “a practical perspective”, and rejected a submission that actual or indicative rosters only at the “test time” were relevant.

12. The BOOT is necessarily hypothetical. It compares Award terms and conditions to a package of terms and conditions that in many cases, like this case, will never have operated, in practice, at the employer. Even if actual as opposed to hypothetical rosters are used, they are necessarily historic and involve the same amount of conjecture. This is because where the nature of a roster will depend on the nature of the terms and conditions actually in operation, as in this case, some practical selection and hypothetical calculation process is a necessity.” 43 (references and footnotes omitted, other than the Hart citation)

[38] Aerocare argue that the 2018 Agreement passes the BOOT with the undertakings given by it in August 2019. This argument relies on several foundations – arguments of construction advanced by the TWU and ASU should be resolved in favour of Aerocare; there have been improvements made to the content of the Agreement after the 2017 Agreement was not approved; potential detriments to employees are not actual detriments; and financial and non-financial benefits in the 2018 Agreement must be taken into account in assessment of the BOOT. The Applicant’s case on the subject of the BOOT is divided into two broad categories; a response either to concerns raised by the Commission or objections made by one or both unions, and evidence from Ms Hennessy on the subject of passage of the BOOT. The latter category is dealt with in more detail later in this decision.

8.3 Aerocare responses to initial FWC ‘concerns’/union objections

[39] The Commission’s usual processes in dealing with enterprise agreement approval applications include allowing union bargaining representatives to state their support or objection in a Form F18 Declaration of Employee Organisation , as well as for the Commission staff to neutrally scrutinise the application, provide advice in the form of a gap analysis to the assigned Member dealing with the application, and for that Member to then invite a response from the Applicant to identified matters.

[40] The ASU’s Form F18 Declaration of Employee Organisation was filed on 22 May 2018 and the TWU’s on 29 May 2018. The Commission’s initial concerns were identified to the Applicant and bargaining representatives on 17 September 2018. The correspondence did not lead to an agreed position.

[41] The following is a summary of the initial concerns raised by the Commission or the unions and the responses given by Aerocare (noting that summaries draw upon the parties’ later submissions and evidence, and is not strictly a summary of the original responses);

Span of hours/overtime

The Commission raised a concern that the Agreement does not appear to provide a defined span of hours. The concern expressed by the Commission was that the absence of a defined span of hours could potentially reduce employee’s entitlements to overtime, given under Clause 32 of the Award employees receive overtime after working 38 hours per week averaged over 28 days as well as outside the times of 7:00 AM to 6:00 PM Monday to Friday. 44 Similar concerns were expressed by the ASU in their reply submissions and the Witness Statement of Mr Shane O’Brien. The TWU Form F18 Declaration of Employee Organisation also raised a concern that there is no span of hours provided in the 2018 Agreement and the payment of overtime for hours worked in excess of the rostered daily hours pursuant to Award Clause 11.4(c)(iii).45

Aerocare puts in reply that Clauses 16.1.1 and 17.3.3 of the 2018 Agreement are consistent with the provision of overtime rates in the Award for working more than 38 hours per week averaged over 28 days. Besides Clause 32, Aerocare contends that there is no identified or required span of hours for shiftworkers in the Award. Furthermore, they submit that the concern raised by both the Commission and the TWU concerning the span of hours only applies to day workers and as all PSE’s under the 2018 Agreement are shiftworkers, the span of hours has no applicability. 46

Hours of work/minimum engagement

Clauses 12.4 and 14.1 of the 2018 Agreement provide that PSE’s and casual employees will be rostered for a minimum of four consecutive hours. The TWU Form F18 Declaration of Employee Organisation and the Witness Statement of Mr O’Brien raised a concern that despite Clauses 12.4 and 14.1 of the 2018 Agreement, the practice of Aerocare is to roster employees for four hours with an unpaid 30 minute to one-hour meal break within the scheduled four hours. 47 The TWU sought an undertaking that Aerocare will roster “four consecutive hours of work”.48

Aerocare submits that the TWU are contending that the Award provides that these employees are entitled to a minimum of four hours of pay. They however submit that there is no evidence to support this assertion and, in any event, it would only apply to casual employees. 49

Shift penalties

The Commission raised a concern that the 2018 Agreement does not appear to provide several shift penalties provided for under the Award including; early morning, night, permanent night and continuous afternoon and night shift penalties. These penalties appear to entitle shift workers to loadings of between 15-30% for working during these times under the Award which they would no longer be entitled to under the 2018 Agreement. 50 The TWU at Attachment B of the Form F18 Declaration of Employee Organisation also lists the non-rotating night shift allowance in its BOOT calculations.51

The 2018 Agreement uses loaded rates of pay. Aerocare submit that these loaded rates of pay have been calculated to provide employees working Monday – Friday with the greatest benefit as the majority of shifts fall within those days. 52 Aerocare relies upon the PwC Reports finding that employees are better off overall subject to the undertakings offered regarding casual employees in the ASA1 and ASA2 classifications. Furthermore, it submits that the non-rotating night shift allowance is not applicable to employees under the 2018 Agreement as no employees are rostered to work on nights only.53

Shift swaps/ vacated shifts

The Commission and the TWU at Attachment A of the Form F18 Declaration of Employee Organisation have raised a concern that under Clause 17.11 of the 2018 Agreement that employees appear to be able to either vacate a shift entirely that they have been rostered to work or swap a shift with another employee whereby the employee who works the swapped shift is not entitled to overtime payments for such work. It appears that there is the potential for an employee to as a result of this Clause work additional hours either at a time where they would otherwise be entitled to overtime, weekend or shift penalties under the relevant Award to be denied such penalties under this provision of the Agreement, resulting in a reduction of entitlement. 54  

Aerocare submits that treating these hours as ordinary time hours under the 2018 Agreement is consistent with Clause 32.1 of the Award. 55

Meal/crib times

The Commission and the ASU has raised that the 2018 Agreement appears to provide no meals breaks or crib breaks for shiftworkers. Moreover, there appears no provision for employees who are unable to take their meal break to receive overtime payments, ordinary rates of pay appear to be applicable in such situations. 56

Aerocare submits that the breaks are provided for at Clause 19 of the 2018 Agreement. 57

Annual leave loading

The Commission raised a concern that the 2018 Agreement does not appear to provide for annual leave loading, whereas the Award provides for a 17.5% leave loading or in the case of shiftworkers a 17.5% shift loading or the penalty they otherwise would have been entitled to were they to have worked their rostered shift whichever is greater (Clause 34.5 of the Award). This would therefore appear to be a reduction in entitlements for employees. 58

Aerocare concedes that annual leave loading is not provided for in the 2018 Agreement, however they submit that this is compensated by employees being entitled to five weeks annual leave under the 2018 Agreement compared to the four weeks of annual leave provided for under the Award. It is submitted that the additional week of annual leave in addition to the higher rates of pay make employees better off overall. 59

Allowances

The Commission and the TWU at Attachment B of the Form F18 Declaration of Employee Organisation, raised that there appears to be several allowances and entitlements that employees would be otherwise entitled to under the Award which they are not entitled to under the 2018 Agreement including; coffin allowance, multiple shift allowance, disability allowance, first aid allowance, night soil allowance, money collection allowance, meal allowance, motor vehicle allowance or uniform and protective clothing laundering allowance, a reduction in travel time allowance, no job search entitlement or transfer to lower paid duties entitlement on termination, a restriction in the higher duties entitlement given the provision for split shifts and no transport is provided for employees after working overtime. The TWU also raised the allowance in Clause 21.19 of the Award as being applicable to the BOOT assessment.  60

The Witness Statement of Mr Shelley details that several of the Award allowances raised by the Commission and the TWU are not applicable to Aerocare’s business and by extension to the employees covered by the 2018 Agreement and the allowances that do have applicability have no impact on an assessment of whether or not employees are BOOT. Aerocare’s submissions addressed each allowance;

•  The coffin allowance and the night soil allowance are infrequently required to be paid to employees and as such can have no quantifiable impact on assessing the BOOT;

•  The multiple shift allowance, uniform and protective clothing laundry allowance have been included in Aerocare’s BOOT assessment;

•  The disability allowance, money collection allowance, overtime meal allowance, motor vehicle allowance, transport after overtime allowance and the foreign language allowance are not applicable to employees covered by the 2018 Agreement;

•  The first aid allowance is included in Aerocare’s BOOT assessment for Supervisors who are required to possess first aid qualifications; and

•  There are differences between the Award entitlements and the 2018 Agreement entitlements to travel time allowance however, travel time allowance is only paid on rare occasions.

Aerocare submitted that the allowances provided in Clause 21.19 of the Award are not relevant to the BOOT assessment as those allowances are not applicable to Aerocare employees.  61

Part-time overtime

The Commission raised that the 2018 Agreement appears to be unclear on the hours of work for part-time employees and whether as under the Award those hours will be agreed to at the commencement of an employee’s employment so as to entitle them to overtime payments when working outside those agreed hours. The Commission was concerned that this could amount to a reduction in overtime entitlements for part-time employees. 62

Aerocare responded that the Award does not provide for agreed ordinary hours entitlement for part-time shiftworkers under the Award except for the provisions in Clause 11.4(c)(iii). The requirement under the Award is for an agreed minimum number of hours per weeks. Aerocare submit that there is no material difference between a minimum number of ordinary hours per week compared to a minimum number of ordinary hours over a four-week roster period. 63

Split-shifts

The Commission has raised the concern that the 2018 Agreement appears to provide for employees to work split shifts under Clauses 17.7 to 17.9 of the Agreement whereby employees can voluntarily be offered more than one shift per day without additional payment for such work where they agree to such in writing. Whereas under the Award it appears to suggest that employees should not be required to work more than one shift per day (Clause 28.3(d)) and that employee’s hours of work should be worked continuously (Clause 28.2(c)). It would therefore appear that the provisions of split shifts under the Agreement would result in a reduction in entitlement for employees who voluntarily agree to work such shifts. 64

The subject of split shifts is dealt with in greater detail later in this decision.

Rates of pay

The Commission has raised that the 2018 Agreement appears to suggest that the rates of pay commence at the time of approval of the Agreement and therefore it appears that there are no rates of pay applicable at test time. Clause 21 of the Agreement appears to suggest that the Agreement will be backdated to 20 February 2017 once approved indicating that the rates of pay may be applicable as of 20 February 2017. 65 The ASU in their reply submissions, the First Witness Statement of Mr Matthew Norrey and the First Witness Statement of Ms Therese Walton also raise the issue with the 1 July 2019 rates of pay being used to assess the BOOT rather than the test time rates.66

Aerocare confirm in their submissions and in the evidence of Mr Shelley that rates of pay in Schedule A of the Agreement are to be back paid to the nominal expiry date of the 2012 Agreement, being 20 February 2017. Aerocare submit that the 1 July 2019 rates in the 2018 Agreement will be the applicable rates of pay as at the date of approval of the Agreement. The 1 July 2019 rates of pay will be back paid to 20 February 2017. 67

Additional benefits

Aerocare submitted that the 2018 Agreement contains other benefits, both financial and non-financial, which are not provided for in the Award. 68

8.4 The TWU and ASU submissions on BOOT

[42] Each of the unions point to provisions of the 2018 Agreement which differ from the Ground Staff Award and which could be less beneficial provisions. Those differences go to the application of the BOOT and therefore require discussion in this decision.

[43] In summary, the departures from the Ground Staff Award identified by the unions surround provisions of the 2018 Agreement allowing for greater flexibility in the rostering of PSE’s. In this regard, the Agreement provides for loaded rates of pay for employees working Monday to Friday, Saturdays, Sundays and Public Holidays (Schedule 1). Overtime is payable for work in excess of 12 hours in any one day; 20 days in the same roster (4 weeks) or more than 152 hours in the same roster period. There is a 20% penalty payable for employees who work between midnight and 6:00 AM referred to as the pre-dawn allowance. Split shifts can be worked by employees who opt-in to such arrangements and there are several allowances payable under the Award which are either loaded into the rates of pay or vary from that found under the Award.

[44] The TWU and ASU BOOT objections can be classified into the following categories (as done so by Aerocare):

(a) the sufficiency and reliability of the BOOT data and the PwC Reports;

(b) the rates of pay used in the BOOT data;

(c) classification translation;

(d) terms of engagement and certainty of hours;

(e) split shifts;

(f) non-rostered overtime hours;

(g) minimum shift lengths and unpaid breaks; and

(h) other shift penalties.

[45] The TWU makes three primary submissions against approval of the 2018 Agreement:

The evidence relied upon for the BOOT analysis

The evidence relied upon by Aerocare in comparing the Award and the 2018 Agreement does not establish compliance with the BOOT. The two PwC Reports of Ms Hennessey are inadmissible, or if they are to be accepted then they are to be given no weight. Furthermore, Aerocare have failed to put forward “any evidence capable of demonstrating the classes of workers identified in their evidence, and against which the Commission must apply the BOOT”. 69 The 2018 Agreement contains loaded rates of pay. Aerocare has conducted its BOOT analysis on theoretical roster patterns using flight schedule data rather than actual rostering data. The Expert Reports of Ms Hennessey are also based on the theoretical roster patterns.70

The TWU assert that the BOOT data provided by Aerocare is not a satisfactory foundation for the Commission to assess BOOT compliance and disagrees with Aerocare’s position that the historical rostering data cannot be used to assess the BOOT because of the change to the minimum shift length. The TWU put that historical rostering data would be useful in assisting the Commission to assess the BOOT as it would provide an understanding of “how frequently rosters initially promulgated were changed from their initial form, how they were changed when they were changed … and how much work attracting penalty rates and overtime under the Award were in fact worked in the periods April and December 2018.” 71

The PwC Reports of Ms Hennessey are also based off this unsatisfactory data and as such the Reports should not be relied upon. If, however, the Commissions is minded to admit the Reports into evidence, then they should be given no weight. The TWU provides three reasons for the inadmissibility of the Expert Reports;

•  The PwC Reports contain opinions which are not supported by reasoning; this leads to a barrier to determining the accuracy of the reports and the reasoning cannot be tested;

•  The PwC Reports do not detail the assumptions of Ms Hennessey, namely they do not identify the wage rates used in the calculations; and

•  The PwC Reports express opinions based on calculations of aggregate figures of the classifications of employees under the 2018 Agreement.

Split-shifts

The 2018 Agreement allows for split shifts which is a detriment to employees. Aerocare has misconstrued the Award and the 2018 Agreement provides for a financial detriment to employees as overtime would be payable under the Award for the second shift of a split shift. 72 The option to opt-in to work split shifts does not circumvent that splits shifts are inconsistent with the Award and Aerocare’s assertion that the opt in arrangement means that employees are not required to work split shifts does not comply with the Award. When a worker opts in to work split shifts and due to operational requirements is rostered to work such a shift, that worker is then required to work that shift as rostered.73 It is put that, “the provision for the working of more than one shift in a 24 hour period, whether by means of an “opt-in” arrangement or otherwise, is inconsistent with the Award and constitutes a significant detriment for the purposes of the BOOT assessment.”74

Higher wage rates should not be accepted as satisfying the BOOT

The 2018 Agreement is a disadvantage to employees in several ways when it is compared to the Award. Aerocare assert that the higher wage rates provided by the 2018 Agreement to satisfy the BOOT. The TWU submit that this assertion should not be accepted. 75

[46] The ASU identified its objections as the following;

Rates of pay

Aerocare in its submissions does not assess the wage rates as at test time, rather it applied the wage rates that would apply from 1 July 2019. Although Mr Shelley in his witness statement asserts that these are the correct rates for a comparison because the 1 July 2019 rates are to be backdated, the ASU put that this is a matter of discretion and the correct test in compliance with s.193(1) of the Act requires an assessment at test time. 76

 137  Aerocare Outline of Submissions, 20 March 2019, [36].

 138  Witness Statement Gregory Shelley, 20 March 2019, [52].

 139  Aerocare Outline of Submissions, 20 March 2019, [25] – [26].

 140  Witness Statement Gregory Shelley, 20 March 2019, [32]; Aerocare Reply Submissions, 19 June 2019, [45].

 141  Aerocare Reply Submissions, 19 June 2019, [26] – [27].

 142  TWU Form F18, Statutory Declaration of Employee Organisation, 29 May 2018, Attachment A, [4]; ASU Reply Submissions, 4 June 2019, [29] – [31].

 143  Aerocare Submissions, 20 March 2019, [25] – [26].

 144  Aerocare Reply Submissions, 19 June 2019, [44] – [46].

 145  ASU Reply Submissions, 4 June 2019, [12].

 146  Aerocare Submissions, 20 March 2019, [23] – [24].

 147  Ibid, [27].

 148  Ibid, [28] – [29]; with reference to Re Loaded Rates Agreements[2018] FWCFB 3610 at [103], [107] and [110].

 149  Witness Statement Gregory Shelley, 19 June 2019, [21](c).

 150 Ibid, [21](b).

 151  Ibid, [66].

 152  ASU Reply Submissions, 4 June 2019, [12].

 153  Witness Statement Matthew Norrey, 31 May 2019, [10]

 154  Aerocare Submissions, 20 March 2019, [29].

 155  TWU Form F18, Statutory Declaration of Employee Organisation, 29 May 2018, Attachment A, [5].

 156  Witness Statement Gregory Shelley, 20 March 2019, [42].

 157  Transcript, PN 833; 848, see also PN 833 – 862.

 158  Witness Statement Gregory Shelley, 20 March 2019, [57].

 159  Ibid, [58].

 160  Email to the Fair Work Commission, 20 March 2019.

 161  TWU Outline of Submissions, 4 June 2019, [11(a) – (d)].

 162  Dasreef v Hawchar, [2011] HCA 21, (2011) 243 CLR 588, [37], (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), with reference to Makita (Australia) Pty Ltd v Sprowles, (2001) 52 NSWLR 705 at 743-744 [85].

 163  Witness Statement Gregory Shelley, 20 March 2019, [5].

 164  Ibid, [36].

 165 Ibid, [37] – [38].

 166  Ibid, [48].

 167  Aerocare Expert Report of Siobhan Hennessy, 18 March 2019, pp. 8 – 9.

 168  Exhibit Aerocare 11, Aerocare Supplementary Report of Siobhan Hennessy, 20 March 2019, pp. 6.

 169  Amended Undertaking, 6 August 2019.

 170  ASU Submissions in Reply, 4 June 2019, [33].

 171  Ibid, [34].

 172  Witness Statement Matthew Norrey, 31 May 2019, [8].

 173  Ibid, [10].

 174  Ibid, [11].

 175  Ibid, [12].

 176  TWU Outline of Submissions, 4 June 2019, [9].

 177  Witness Statement Shane O’Brien, 4 June 2019, [38].

 178  Exhibit TWU 5, Witness Statement Therese Walton, 4 June 2019, [6](b).

 179  “a dogmatic assertion made on the unsupported authority of the speaker” – Lexis Nexis Encyclopaedic Australian Legal Dictionary (online), accessed 10 December 2019.

 180  Ibid, [11].

 181  Aerocare Reply Submissions, 19 June 2019, [8].

 182  [2018] FWCFB 3610.

 183  Aerocare Reply Submissions, 19 June 2019, [10].

 184  Ibid, [11], citing [2016] FWCFB 2887.

 185  Ibid, [15].

 186  Second Witness Statement Gregory Shelley, 19 June 2019.

 187  Ibid, [21].

 188  Ibid, [28] – [30], [69](b); Attachment SGS – 2.

 189  Exhibit TWU 7, Third Witness Statement Therese Walton, 29 July 2019, [10].

 190  Transcript, PN 241 – 277.

 191  Ibid, PN 334 - 362

 192  Aerocare Outline of Submissions, 20 March 2019, [20].

 193  See AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833; Armacell Australia Pty Ltd [2010] FWAFB 9985.

 194  CFMEU v TR Construction Services Pty Ltd[2017] FWCFB 1928 at [20].

 195  Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited; Australasian Meat Industry Employees Union, The v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2016] FWCFB 2887 (31 May 2016); at [33].

 196  [2018] FWCFB 3610.

 197  Ibid, [115].

 198 Ibid, [107] – [110].

 199 Ibid, [112] – [114].

 200  Transcript, PN 200 – 201.

 201  TWU Outline of Submissions, 4 June 2019.

 202  PwC employee EN5427 was identified in Exhibit Aerocare 13 (correspondence from Johnson Winter Slattery, 25 June 2019) as being employee DZ4266 in the Aerocare data.

 203  TWU Outline of Submissions, 4 June 2019, [8] – [10].

 204  [2018] FWCFB 3610 at [103] – [110].

 205  Aerocare Expert Report of Siobhan Hennessy, 18 March 2019, [7].

 206  Being the sum of the “weekly total” of the rows in the Award model entitled “Split Shift as OT - 150% zone”; “Split Shift as OT- 200% zone” and “Split Shift as OT - XMAS/ Good Friday”.

 207  Being the sum of the “weekly total” of the row in the Award model entitled “Non-continuous afternoon or night - Clause 30.5”.

 208  Being the sum of the “weekly total” of the rows in the Award model entitled “Split Shift as OT - 150% zone”; “Split Shift as OT- 200% zone” and “Split Shift as OT - XMAS/ Good Friday”.

 209  Being the sum of the “weekly total” of the row in the Award model entitled “Non-continuous afternoon or night - Clause 30.5”.

 210  Witness Statement of Gregory Shelley, 20 March 2019, [42].

 211  Ibid, [16], Attachment GS – 5.

 212  Form F17, Employer's Statutory Declaration, item 3.4 – improvements and reductions; see also Witness Statement Gregory Shelley, [65].

 213  [2019] FWCFB 1716.

 214 Ibid, [88] – [95].

 215  PR707459.

 216  Amended Undertaking, 6 August 2019.

 217  2018 Agreement, Clause 17.7.

 218  Witness Statement Gregory Shelley, 20 March 2019, [54].

 219  Transcript, PN 200 – 201.

 220  Re: Kore Construction Pty Ltd[2014] FWC 1955, [30].

 221  CFMEU v KAEFER Integrated Services Pty Ltd[2017] FWCFB 5630, (2017) 271 IR 273, with reference to Re AKN Pty Ltd t/a Aitkin Crane Service[2015] FWCFB 1833, 248 IR 129, [34]; cited with approval in CFMEU v Lightning Brick Pavers[2018] FWCFB 3825, (2018) 281 IR 9, at [25].