AKN Pty Ltd T/A Aitkin Crane Services

[2019] FWC 8338

[2019] FWC 8338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AKN Pty Ltd T/A Aitkin Crane Services
(AG2019/711)

DEPUTY PRESIDENT ASBURY BRISBANE, 9 DECEMBER 2019

Application for approval of the AKN Pty Ltd National Employee Services Agreement 2019.

BACKGROUND

[1] AKN Pty Ltd (AKN or the Applicant) applies to the Fair Work Commission (the Commission) under s. 185 of the Fair Work Act 2009 (the Act) for approval of the AKN Pty Ltd National Employment Services Agreement 2019 (the Agreement). AKN has filed a Form F16 Application for approval of an enterprise agreement (other than a greenfields agreement) (Form F16) and Form F17 Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17).

[2] AKN is in the mobile crane hiring industry and is a subsidiary of the Boom Logistics Group of Companies. The Agreement is a single enterprise agreement that is expressed to cover AKN and employees in classifications set out in the appendices to the Agreement, including Fly In, Fly Out (FIFO), Drive In, Drive Out (DIDO), and local workers, across Australia. Appendix D of the Agreement is headed “Position Descriptions” and includes position descriptions in relation to the positions of Mechanic, Crane Operator, Rigger/Dogger, Crane Supervisor and Truck Driver

[3] Issues with repect to compliance with legislative pre-approval requirements and whether the Agreement passes the Better Off Overall Test (BOOT) were identified by the Commission’s Agreement Team and the matter was allocated to me. The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) corresponded with the Commission seeking to make submissions in opposition to the approval of the Agreement and requesting copies of the Form F16 and Form F17 and any other documentation filed with the Agreement. Consistent with the Full Bench Decision in Construction, Forestry, Mining and Energy Union v Ron Southon Pty Ltd 1copies of the Forms F16 and F17 were provided by me to the CFMMEU, except that details such as names and addresses of bargaining representatives were redacted on the basis that I do not consider it appropriate to provide such material to parties external to the Agreement making process.

[4] At the same time as providing the Form F16 and F17 to the CFMMEU I requested that the Union advise whether it asserted that it was a bargaining representative in respect of the Agreement and provide written submissions concerning the basis of any objections to the application for approval, if any. The CFMMEU responded to my request indicating acceptance that the Union was not, and is not, a bargaining representative for the Agreement. The CFMMEU further indicated that it sought to be heard in the application for approval on the basis that it has significant membership in the construction industry and could assist the Commission in considering the application.

[5] After considering the submissions filed by the CFMMEU, I communicated with AKN indicating my provisional view that I would exercise the discretion in s. 590 of the Act to hear from the CFMMEU in relation to the application for approval. Australian Business Lawyers & Advisors (ABL) responded on behalf of AKN, seeking to represent AKN and advising that while the Company did not object to submissions being provided by the CFMMEU, AKN would object to the CFMMEU being heard in the proceedings at all. AKN sought leave to file submissions in relation to its objection. Leave was granted and I indicated that I would conduct a hearing to deal with all matters including the CFMMEU’s involvement in the approval process.

HEARING

[6] A hearing into the application for approval was conducted and oral and written submissions were made during and after the hearing. AKN was represented by Mr Luis Izzo of ABL and the CFMMEU by Ms Emma Barnes-Whelan. Permission was granted to AKN to be represented by ABL pursuant to s. 596 of the Act on the basis that I was satisfied that this would allow the matter to be dealt with more efficiently having regard to its complexity.

[7] In relation to the involvement of the CFMMEU, AKN submitted that a union may intervene in an application for approval of an enterprise agreement on two grounds: where the union’s interests are sufficiently affected by the application such that procedural fairness dictates a right to be heard; or, where not right to be heard exists but the union is invited to participate by the Commission in the exercise of the Commission’s power to inform itself.

[8] AKN submitted that the CFMMEU has no right to intervene in these proceedings. The CFMMEU does not represent any employees covered by the Agreement; it was not a bargaining representative for the Agreement; all employees covered by the Agreement voted and voted in support of approval; the CFMMEU is not covered by the current enterprise agreement; and the CFMEU (as it then was) did not seek to be heard in relation to the previous application for approval of the current enterprise agreement.

[9] The discretion under s.590 of the Act, permitting the Commission to inform itself is broad but must be exercised in a manner consistent with s.577 of the Act. Section 577 of the Act deals with the manner in which the Commission must perform its functions and exercise its powers. AKN submits that dealing with the application in this manner would militate against the CFMMEU being invited to make submissions. These circumstances also include the detailed statutory context in which bargaining and agreement making occurs. For similar reasons to those relied upon above, AKN submits that the Commission should not inform itself by inviting submissions from the CFMMEU.

[10] The CFMMEU submitted that the Commission’s broad discretionary power under s.590 of the Act permits the Commission to inform itself in any matter as it considers appropriate. In this regard, the CFMMEU submitted that it is the “primary” union with such coverage, has an extensive history of industrial representation of workers in respect of work covered by the Award. The CFMMEU has significant membership in the building and construction industry and is eligible under its Rules to cover employees that will, in the event of approval, be covered by the Agreement and would be a “person aggrieved”, for the purposes of s. 604 of the Act in the event of an appeal against the approval of the Agreement. The CFMMEU also submitted that the Commission’s broad discretionary power under s.590 of the Act permits the Commission to inform itself in any matter as it considers appropriate and that this power should be exercised to allow the Union to be heard in the application for approval.

[11] I decided to exercise discretion under s. 590 of the Act to hear from the CFMMEU on the basis that I am entitled to inform myself as I see fit and that if the discretion was not exercised there would be no contradictor to the application for approval. In exercising the discretion under s. 590 I also had regard to the fact that the CFMMEU complied with all requests to provide information to the Commission and has filed comprehensive submissions in relation to its issues with the Agreement. The involvement of the CFMMEU has not delayed the approval process and the Union sought to ventilate similar issues to those identified by the Commission’s Agreement Team and about which I also had concern.

[12] The issues for consideration concern whether:

•  reasonable steps were taken by AKN to give a Notice of Employee Representational Rights (NERR) in the required form to each employee who will be covered by the Agreement as required by ss. 173 and 174;

•  the Agreement was genuinely agreed to by employees covered as provided in s. 186(2) and s. 188 having regard to the matters in s. 188(a)(i) in relation to:

◦  requirements for AKN to have taken all reasonable steps to ensure that during the access period employees were given or given access to a copy of the written text of the Agreement and any other materials incorporated by reference in the Agreement (s. 180(2)); and

◦  requirements for AKN to explain the terms of the Agreement and the effect of those terms in an appropriate manner taking into account the particular circumstances and needs of the relevant employees (ss. 180(5) and (6);

•  the Agreement provides for less beneficial terms than the National Employment Standards (NES);

•  the date of commencement and the nominal expiry date of the Agreement as specified in clause 4 are consistent with the requirements in s. 186(5) of the Act; and

•  the Agreement passes the better off overall test (BOOT).

[13] In considering whether the Agreement should be approved, I had regard to written and oral submissions made by AKN and the CFMMEU including various BOOT calculations involving the rates under the Agreement and the following documents:

•  The Agreement;

•  The Form F16 Application for approval of an enterprise agreement (other than a greenfields agreement) (Form F16);

•  The Form F17 Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) made by Mr Paul Naulty, Operations Manager of AKN (Form F17); and

•  A supplementary statutory declaration made on 7 August 2019 by Mr John Mitchell, National Human Resources and Industrial Relations Manager for Boom Logistics Ltd.

EVIDENCE AND SUBMISSIONS

NERR issue

[14] Section 173 of the Act requires that the Commission be satisfied that the employer took all reasonable steps to give a NERR to each employee covered by a proposed agreement, who is employed at the notification time. Section 174 prescribes the content and form of the NERR including that it contains the content prescribed by the Fair Work Regulations 2009.

[15] In the Form F17 filed with the Agreement AKN indicated that a NERR was given to relevant employees at a meeting on 21 September 2018 and sent via email and communication points including being provided in crib rooms and handed out to employees. A copy of the NERR appended to the Form F17 and said to have been given to the relevant employees, was not consistent with the coverage of the Agreement and indicated that notice was being given by Boom Logistics Pty Ltd and that the Agreement was proposed to cover the Company’s employees carrying out work at its Olympic Dam Depot.

[16] It also appeared that the version of the NERR appended to the Form F17 was an older version than that currently stipulated in Regulation 2.05 of the Fair Work Regulations 2009. Email correspondence sent to the Company outlining my issues with the Agreement requested clarification in relation to whether an incorrect version of the NERR was appended to the Form F17 or whether the version appended to the Form F17 was the version given to employees.

[17] AKN responded via its National HR/IR Manager Mr John Mitchell, who advised that the version of the NERR appended to the Form F17 was not the version provided to employees covered by the Agreement and that it was incorrectly appended to the Form F17. The version that was provided to employees covered by the Agreement on 21 September 2018 was forwarded to the Commission by Mr Mitchell and I accept that a NERR in the required form was provided to employees on that date.

[18] Accordingly, I am satisfied that the requirements of s. 173 and s. 174 of the Act have been met.

Genuine agreement issues

Copies of Agreement and incorporated material to be provided to employees

[19] Section 188 of the Act requires that in order to approve an enterprise agreement the Commission is satisfied inter alia that the employer complied with the provisions of s. 180(2) of the Act. Section 180(2) is in the following terms:

“Employees must be given copy of the agreement etc.

(2) The employer must take all reasonable steps to ensure that:

(a) during the access period for the agreement, the employees (the relevant employees) employed at the time who will be covered by the agreement are given a copy of the following materials:

(i) the written text of the agreement;

(ii) any other material incorporated by reference in the agreement; or

(b) the relevant employees have access, throughout the access period for the agreement, to a copy of those materials.”

[20] Item 2.5 of the Form F17 deals with the requirements in s. 180(2) of the Act and asks the employer to state the steps that were taken to comply. In response to that question, Mr Naulty declared that on 26 February 2019, “all employees” were given a copy of the Agreement during the access period. This occurred at a meeting held on that date where “all employees” covered by the Agreement were handed a copy of the “written text and other incorporated materials”. Mr Naulty did not elaborate on exactly what “other incorporated materials” were handed to all employees. Mr Naulty further stated that employees were “eligible” to ask any questions surrounding the document and all clauses were explained “in detail” and any questions were addressed in the meeting.

[21] In addition to this explanation, Mr Naulty declares that local management printed copies of the Agreement and “related documentation” for onsite employees. Again, exactly what “related documentation” Mr Naulty is referring to is not specified. Mr Naulty also states that Local management were available to answer questions in relation to the Agreement and “related documentation” during the access period.

[22] In its submissions in opposition to the approval of the Agreement, the CFMMEU contended that clauses 8 and 14.1 of the Agreement refer to policies and procedures that impose binding obligations on employees. Those clauses are in the following terms:

“8. Policies & Procedures

Employees will comply with the Company's policies and procedures, as varied from time to time. However; these policies and procedures (as varied) are not incorporated into the Agreement. Accordingly; whilst non-compliance by an Employee with any of the Company's policies and procedures will be a breach of policy, and may be the subject of disciplinary action, it will not constitute a contravention of a term of this Agreement.

Employees will adopt safe working practices for the protection of all persons on a Site, customers of the Company, and members of the public.

Employees also agree that they will comply with all applicable Site or customer policies including, without limitation, any:

•  Camp or Shared Accommodation rules/requirements;

•  Site or customer Fitness for Work policies; and

•  Site or customer security requirements.

Further; Employees agree that any breach of a Site or customer policy (or rule/requirement) that results in an Employee being removed from, &/or denied entry to, a Site may entitle the Company to terminate the Employee's employment without notice or payment in lieu.

Employees acknowledge that induction training may be conducted prior to their commencing work on a Site, and that completion of induction training may be a prerequisite to working on a Site.

14 Drug & Alcohol Policy

14.1 The Parties acknowledge the affect that Employees with drug and/or alcohol problems can cause in the workplace. An Employee with such a problem can lead to:

a) an unsafe workplace;

b) a loss in productivity; and

c) a loss of morale within the Company.

Accordingly; subject to this Agreement, any incidents concerning drugs and/or alcohol will be dealt with strictly in accordance with the Company's Drug and Alcohol Policy.

14.2 The Parties also acknowledge that a Site may have a Site specific Drug and Alcohol Policy. In which case; the terms of the Company's Policy will be supplementary to, and will be read and interpreted in conjunction with the Site's Policy, provided that where the Site's Policy is inconsistent with the Company's Policy, the stricter standard will prevail to the extent of any inconsistency.”

[23] The CFMMEU submits that given the documentation referred to in those clauses was not filed in the Commission with the Form F17, the Commission should find that the documentation was not provided to employees and as a result, AKN has failed to discharge its obligations under s. 180(2)(a)(ii) of the Act.

[24] In response to the CFMMEU submissions AKN contended that clause 8 of the Agreement clearly states that policies and procedures are not incorporated into the Agreement and that it should be self-evident that this is the case. In support of this contention, AKN referred to National Tertiary Education Industry Union v University of NSW 2. AKN also submitted that it had provided copies of all of its policies employees by providing them with a copy of the Company’s HR Policy Manual on 26 February 2018, as evidenced by the supplementary statutory declaration of Mr Mitchell.

[25] I accept the submission for AKN that by virtue of clause 8 of the Agreement policies are not incorporated. I also note that non-compliance will not constitute a contravention of a term of the Agreement. In any event, I also accept that a copy of the HR Policy Manual was available at the meeting on 26 February 2019 and that this constituted all reasonable steps to provide access to copies of those policies. Accordingly, I am satisfied that the requirements of s. 180(2)(a)(ii) have been met.

Explanation of the terms of the Agreement and their effect

[26] Section 188 of the Act requires that in order to approve an enterprise agreement the Commission is satisfied inter alia that the employer complied with the provisions of s. 180(2), (3) and (5) in relation to pre-approval steps. Relevantly in the present case, s. 180(5) requires that the employer takes all reasonable steps to ensure that:

(a) The terms of the Agreement and the effect of those terms are explained to relevant employees; and

(b) The explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

[27] Section 180(6) of the Act provides examples of the kinds of employees whose particular circumstances and needs are to be taken into account and includes employees from culturally and linguistically diverse backgrounds; young employees and employees who did not have a bargaining representative for the agreement.

[28] In One Key Resources v CFMEU the Full Court of the Federal Court considered the legislative provisions relating to genuine agreement. The Court held that a bare statement by an employer that an explanation has been given is an inadequate foundation upon which to reach the required state of satisfaction. The Court said:

“…In order to reach the requisite state of satisfaction that s. 180(5) had been complied with, the Commission was required to consider the content of the explanation and the terms in which it was conveyed, having regard to all the circumstances and needs of the employees and the nature of the changes made by the Agreement.” 3

[29] The Court also said that:

“The Commission was required to be satisfied that OKW had taken “all reasonable steps to ensure” that both the terms and the effect of the terms had been explained to the relevant employees as an element in the inquiry as to whether “genuine” agreement had been obtained from them. The agreed purpose of the obligation imposed on employers by s 180(5) is to enable the relevant employees to cast an informed vote: to know what it is they are being asked to agree to and to enable them to understand how wages and working conditions might be affected by voting in favour of the agreement.

In order for the employer to comply with the obligation it must take into account the particular circumstances and needs of those employees, including their cultural and linguistic backgrounds, their youth, and the absence of a bargaining representative. That is made explicit in s 180(6). How could the Commission decide whether the steps the employer had taken were “all reasonable steps” unless it knew what the employees had been told before they cast their votes? Without knowing the terms in which the explanation had been conveyed how could the Commission form an opinion on the sufficiency of the explanation, particularly having regard to the considerations mentioned in s 180(6)? Ultimately, how could the Commission decide that a genuine agreement had been reached without having evidence upon which it could answer both these questions?” 4

[30] The relevant principles applicable to s 180(5) were summarised in paragraphs [35]-[36] of the Full Bench decision in AWU v Rigforce Pty Ltd 5as follows:

“…The nature of the requirement in s 180(5) was analysed in detail by the Federal Court (Flick J) in CFMEU v One Key Workforce Pty Ltd. 9 We adopt the summary of that analysis set out in CFMMEU v Ditchfield Mining Services Pty Limited,10 which reduced it to the following four propositions:

(1) whether an employer has complied with the obligation in s 180(5) depends on the circumstances of the case;

(2) the focus of the enquiry whether an employer has complied with s 180(5) is first on the steps taken to comply, and then to consider whether:

◦  the steps taken were reasonable in the circumstances; and

◦  these were all the reasonable steps that should have been taken in the circumstances.

(3) the object of the reasonable steps that are to be taken is to ensure that the terms of the agreement, and their effect, are explained to relevant employees in a manner that considers their particular circumstances and needs. This requires attention to the content of the explanation given; and

(4) an employer does not fall short of complying with the obligation in s 180(5) of the FW Act merely because an employee does not understand the explanation provided.

Additionally, we also adopt the analysis of Gostencnik DP in BGC Contracting Pty Ltd concerning the nature of a statutory obligation to take “all reasonable steps” as follows (footnote omitted):

‘[43] A requirement or obligation to take “all reasonable steps” seems to me to require the identification of the steps a reasonable person would regard as reasonable in the circumstances that apply. Whether particular steps are reasonable will depend on the particular circumstances existing at the time the obligation arises. A requirement to take all reasonable steps does not extend to all steps that are reasonably open in some literal or theoretical sense…’ .”

[31] The Form F16 filed by AKN indicates that no union bargaining representatives were involved in making the Agreement, although there were two individual employee bargaining representatives.

[32] The Form F17 has been completed by Mr Paul Naulty, Operations Manager of AKN. Item 2.7 of the Form F17 asks what steps were taken by the employer to explain the terms of the Agreement and the effect of those terms. A note on the Form alerts the person making the declaration to the fact that more is required than simply stating that the terms of the Agreement were explained and that the steps taken, what was explained and the date on which each step was taken should be described. The note also states that copies of any materials used to explain the terms of the Agreement and the effect of those terms to employees should also be lodged. In response to the questions in item 2.7 of the Form F17 Mr Naulty declared:

Step taken and the explanation given	Date of step
Initial meeting with affected employees to initiate bargaining and to determine the log of claims. Continual discussions were held throughout this period	21/02/2019
Continual discussions were held with the Bargaining Representatives, affected employees and the Employer from the time of the Notice of Rep Rights being issued to the employees up to the date the notice to vote was provided to all employees	Ongoing as questions arise
During the negotiation process copies of the agreement with track changes where provided to the employee representatives and the affected employees. For example, see attached Tracked Version 5 on 16/11/2018. In total there where 7 Tracked versions of the document.	16/11/2018
Met with bargaining representatives for further discussions to outline any necessary changes. The reps where given the opportunity to ask any relevant questions and voice concerns.	30/01/2019
Consultation with bargaining representatives to identify a time and place for all affected employees to attend a meeting to go through the final document to clarify concerns and answer any questions.	12/02/2019
Meeting with all affected employees to go through the final document clause by clause where the affected employees where given the opportunity to ask questions and clarify any concerns with the agreement and relevant documentation.	26/02/2019

[33] In response to item 2.8 of the Form F17 asking for an explanation of what was done during the explanation of the terms of the Agreement and their effects to take account of the particular circumstances and needs of the relevant employees, Mr Naulty states:

Step taken	Relevant group of employees addressed	Date of step
All affected employees were in attendance at the meeting and given the opportunity to ask questions. There where no employees from Non-English speaking background or other special needs.	All employees covered by the agreement.	26/02/2019

[34] In Mr Mitchell’s affidavit filed in these proceedings he states that the terms of the Agreement and the effect of those terms was explained at a meeting on 26 February 2019. Mr Mitchell states that all employees to be covered by the Agreement attended this meeting. Ms Heidi Dorn attended as the representative of the employer as Mr Naulty was on leave at the time. Mr Mitchell attended the meeting by telephone.

[35] According to Mr Mitchell, the meeting occurred over 2 hours. During that time the Agreement was discussed clause by clause. There were regular stops during the meeting to ensure that employees understood what was meant. Mr Mitchell says he would have stopped approximately 8 times to check employees’ understanding. At the conclusion of the clause by clause discussion, Mr Mitchell asked employees twice, whether they had any questions. Mr Mitchell does not recall the exact words used throughout the two hours but recalls the gist of discussions regarding key clauses for employees. Mr Mitchell gives evidence over 4 pages of his statement in which he identifies matters that he recalls were discussed. It is not necessary to recount that evidence in full, but it is appropriate to identify that in my view the discussion was thorough.

[36] The CFMMEU’s assertion that the requirements of s. 180(5) and (6) were not met is premised on alleged inaccuracies in the Form F17 with respect to Agreement clauses that are said by Mr Naulty to be more or less beneficial than terms of the Mobile Crane Hiring Industry Award 2010 which is the award referred to by the CFMMEU in its BOOT analysis. It is contended that due to these inaccuracies the Commission could not be satisfied as to the accuracy of the explanation of the terms of the Agreement and their effect.

[37] AKN submits that there is no requirement that the Commission be satisfied that employers are obliged to compare a proposed enterprise agreement to an underlying modern award by conducting a clause by clause explanation. This is particularly so where the employees to whom the explanation is being provided are covered by an existing enterprise agreement and the explanation covers the differences between a proposed and a current agreement. This was so in the present case. Reference was also made to Mr Mitchell’s supplementary statutory declaration which it was submitted establishes the adequacy of steps taken to explain the terms of the Agreement and their effect, by the fact that employees attended bargaining meetings for the Agreement and pressed for improvements in the terms and conditions offered in various drafts. Mr Mitchell also referred to the fact that some seven versions of the Agreement were discussed at various times.

Moral authenticity and authority of the Agreement

[38] The CFMMEU notes that the Agreement purports to be underpinned by three modern awards, to apply nationally and that only 6 employees were employed at the time and voted to approve the Agreement. Relying on CFMEU v One Key Workforce Pty Ltd, 6the CFMMEU submits that given the “broad coverage” of the Agreement and the number of employees involved, “legitimate concerns arise” as to whether the Agreement has the requisite “authenticity” and “moral authority”.

[39] AKN submits that the grounds relied upon by the CFMMEU in submitting that the agreement lacks authenticity and moral authority are shallow and lack supporting detail. AKN also submits that the principles derived from One Key are not present in this case and the evidence demonstrates genuine agreement by employees to the Agreement.

[40] In particular, AKN submits that One Key is not authority for the proposition that a small group of employees cannot validly approve an enterprise agreement at all or approve an enterprise agreement containing some classifications in which persons are not currently employed. In support of this proposition AKN points to the decision of the High Court in Aldi Foods Pty Limited v Shop, Distributive and Allied Employees Association 7which made clear that there is no prohibition on a small group of employees approving an enterprise agreement, which may ultimately cover a large group of employees. AKN submits that One Key is also authority for this proposition.

[41] According to AKN the circumstances of this matter are “entirely detached and distinguishable” from One Key. The 6 employees that voted on the Agreement are crane operators. The classifications in the Agreement are “predominately related” to crane operating. The first 6 classifications in the Agreement are related to the operation of cranes. The remaining 2 classifications do not presently have an employee engaged in those classifications and might never. The classifications, Mechanic and Truck Driver, are in any event ancillary to the primary classifications of crane operation. There is no evidence of any different business operation being in contemplation.

[42] Reference was also made to the evidence of Mr Mitchell as set out in his supplementary statutory declaration. That evidence establishes that at its largest, AKN engaged 18 employees, significantly different to the thousands identified in One Key. There has been a reduction in the number of employees prior to vote, which AKN submits it has provided bona fide reasons. The Boom Group lost approximately $3 million in revenue, leading to an overall reduction of 50 staff.

Conclusion in relation to genuine agreement issues

[43] I am satisfied that as required by s. 180(5) of the Act, AKN took all reasonable steps to explain the terms of the Agreement and their effect to employees. The employer conducted a meeting on 26 February 2019 attended by all employees at which a thorough explanation of the terms of the Agreement and their effect was explained. I accept Mr Mitchell’s evidence in this regard. I am also of the view that this meeting constituted all of the reasonable steps that could have been taken in the circumstances.

[44] The circumstances included that the employees to be covered by the Agreement were already covered by an agreement in substantially similar terms. There is evidence that the employees covered by the Agreement and their bargaining representatives had been actively involved in bargaining. This is not a case where an enterprise agreement was presented as a fait accompli in circumstances where there had been no bargaining involving employees or where the clause by clause explanation was the first time that employees had considered the Agreement in any detail. I also accept that the explanation given was reasonable and that the meeting and that the employer took all reasonable steps in the circumstances to explain the terms of the Agreement and their effect. AKN took all reasonable steps to explain the terms of the Agreement and their effect to employees having regard to their needs and circumstances as required by sections 180(5) and (6) of the Act.

[45] I am also satisfied that the Agreement was genuinely made and that there is no basis for finding that the Agreement lacks authenticity or moral authority so that it was not genuinely agreed. In this regard I accept the submissions made by ABL on behalf of AKN, that the circumstances in this case bear no resemblance to those in One Key on the basis that:

•  The 6 employees who voted to approve the Agreement are crane operators;

•  The predominant classifications under the Agreement are for crane operators;

•  There are only 2 classifications with the Agreement in which the employees who voted to approve it might not be feasibly engaged - mechanic and truck driver;

•  The classifications of mechanic and truck driver are ancillary to the primary operations of AKN’s business (crane operation) and do not prima facie disclose any designs to establish some different business operation or to apply the terms of the Agreement to a new and different operation; and

•  Given the nature of the work performed by crane drivers it is likely that they would have an understanding of the work of truck drivers and mechanics and might be engaged to perform some truck driving during the life of the Agreement.

[46] In contrast with the facts in One Key this is not a case where a small group of employees voted to approve an agreement which covered numerous other classifications which they had no basis for appreciating. Further the relevant employees were involved in negotiating the Agreement and were engaged in the bargaining process as is apparent from the evidence of Mr Mitchell. It is also the case that the classifications in the Agreement are similar to those contained in the currently operative Agreement and that the currently operative Agreement is in substantially the same terms as the Agreement subject of this application.

[47] I also accept Mr Mitchell’s evidence that at its largest AKN employed 18 persons and there are bona fide business reasons why this number has reduced to six employees – namely the Boom Group of which AKN is a part, lost approximately $3 million in revenue which necessitated the reduction of 50 staff. Accordingly I do not accept the CFMMEU’s submission that the Agreement lacks authenticity or moral authority and I am satisfied that it was genuinely agreed.

NES issues

[48] Section 186 of the Act stipulates the general requirements for approval of an enterprise agreement including the requirement in s. 186(2)(c) that the terms of the agreement do not contravene section 55 which deals with the interaction between enterprise agreements and the NES. Section 55 provides that an enterprise agreement must not exclude the NES and that NES provisions may operate subject to ancillary or incidental terms in agreements but only to the extent that such terms do not operate in a way that is detrimental.

[49] In the Form F17, Mr Naulty declares that there are no terms that exclude in whole, or in part, the NES; there are no terms of the Agreement that are detrimental in any request when compared with the NES; and there are no terms dealing with right of entry or unlawful terms.

[50] Notwithstanding Mr Naulty’s declaration, I corresponded with AKN identifying the following issues with respect to the terms of the Agreement and the potential for detriment for employees covered by the Agreement in comparison with the NES:

•  Clause 22.5 of the Agreement provides that notice of the taking of personal/carers leave is required to be given as soon as practicable and before the employee’s scheduled start time which is more onerous than s. 107(2)(a) of the Act which provides that notice of taking such leave must be given as soon as practicable (which may be a time after the leave has started). Compassionate leave

•  Compassionate leave is not stated to be 2 days’ per occasion as is the case under the NES.

•  A number of leave provisions are stated to be paid at 7.6 hours per day, however the schedules of the agreement indicate that up to 12 ordinary hours may be worked per day, which may result in employees being entitled to less leave than they would be under the NES which requires that leave is calculated in weeks or days and paid at the ordinary hours for the period of leave.

•  Clauses 19.12 & 17.6 of the Agreement provide that any amounts prepaid by the company (for things such as training costs) in excess of the period of employment will be deducted from the employee’s final termination payment which may result in some payments being deducted from accrued annual leave which in turn may be inconsistent with s. 90(2) of the Act.

•  Further, the deduction from wages of such amounts may be inconsistent with s. 324 of the Act particularly given that the amounts which may be deducted are not quantified with any precision. As a result, employees may not be taken to have agreed with such a deduction by agreeing to the terms of the Agreement.

•  Clause 19.16 of the Agreement insofar as it deals with abandonment of employment may result in employees not being paid statutory notice periods in circumstances where employment ends at the initiative of the employer by acceptance of repudiation of the employment contract.

•  Clause 20(b) of the Agreement provides for the employer to unilaterally determine not to pay redundancy payments to which an employee would be entitled on the basis that the employer deems that the employee has rejected an offer of suitable alternative employment. This is inconsistent with s.120 of the Act which provides that the Commission may determine to reduce redundancy payments to an employee in such circumstances but only on application by an employer.

•  Clause 20(a) provides that employees with more than 2 years continuous service are paid an amount of 3 weeks per year of service up to a maximum of 26 weeks. This starting amount appears inconsistent with the NES at s.119(2) as employees who have completed at least 2 years but less than 3 years continuous service receive 6 weeks’ pay.

[51] I also advised AKN in correspondence that I had considered clause 5(a) of the Agreement in relation to the above matters and accepted that this clause provides that more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. Notwithstanding this I also expressed the view that employees covered by an enterprise agreement should not have to conduct a line by line comparison between the terms of the Agreement and the NES to ascertain their entitlements and that the employer should consider providing an undertaking identifying the areas where the terms of the Agreement may be inconsistent with the NES to operate in conjunction with clause 5(a) of the Agreement.

[52] An additional issue was raised in relation to the definition of shiftworker for the purposes of the NES. The Form F17 states that the modern awards that cover the employer and any employees covered by the Agreement are: the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award); the Road Transport and Distribution Award 2010 (Road Transport Award) and the Mobile Crane Hiring Award 2010 (Mobile Crane Award).

[53] The Agreement contains a definition of a shiftworker for the purposes of the NES at clause 24.4, which is the same definition contained at clause 25.1(b) of the Mobile Crane Award. That definition is in the following terms:

“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.”

[54] The definition of a shiftworker in clause 41.3 of the Manufacturing Award and at clause 29.1(b) of the Transport Award is as follows:

“…a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays.”

[55] The definition of shiftworker in the Agreement appears to be more onerous compared to the definition contained in the Manufacturing and Road Transport Awards, as it also requires shifts to be continuously rostered 24 hours a day for seven days a week, where the Manufacturing and Transport Awards do not contain this requirement. As a result, employees who would be within the definition of shift worker in those Awards may not be entitled to the additional week of annual leave provided for in the NES in circumstances where they would be entitled to this benefit if those Awards applied to them.

[56] The CFMMEU submitted that a number of clauses in the Agreement are inconsistent with the NES as follows:

•  Termination of employment – the circumstances permitting summary dismissal appear to be wider under the Agreement than under the NES and the clauses dealing with abandonment of employment are inconsistent with authority and the NES;

•  Annual leave – the calculation of annual leave impermissibly works on the basis of ‘hours’ and not ‘days’ as in the NES;

•  Personal/carer’s leave – the notice and evidence requirements under the Agreement are more onerous than the NES, the calculation of personal/carer’s leave impermissibly works on the basis of ‘hours’ and not ‘days’ as in the NES and clause 22.4 limits access to carer’s leave by requiring that an employee exhaust all personal leave first;

•  Compassionate leave – the NES provides for 2 days compassionate leave per occasion whereas the Agreement does not express provide for access to compassionate leave per occasion and payment for compassion leave is calculated by reference to ‘hours’ and not ‘days’ as in the NES;

•  Redundancy – the Agreement appears to circumvent the mechanism for varying or limiting redundancy pay in s.120 of the Act.

BOOT issues

[57] For the purposes of the BOOT,the Manufacturing Award, the Transport Award and the Mobile Crane Award cover AKN and the employees covered by the Agreement. AKN has provided a table for the purposes of translating classifications between the Agreement and the relevant Awards. The Agreement contains terms that a more beneficial, not conferred by and less beneficial than the Awards.

[58] In the Form F17 Declaration, Mr Naulty identified the more beneficial terms as being:

“Appendix A – Wage Rates

Shift Work – clause 15.2

Travel Allowances – Clause 16.4

Working Away from home – Clause 16.5

Overtime – Clause 14.17

Meal Allowance – Clause 14.18”

[59] Those terms being less beneficial than the Awards are identified in the Form F17 Declaration as:

“Clause 15.19 Agreement – PH rate is double time instead of double time and one half;

Clause 17.1 Agreement – wage rate is loaded rate incorporating additional payments for allowances such as meal, district, tool and travel allowance for all employees.

Clause 37.3 [Manufacturing Award] – provides for 30% loading for mechanics on night work;

Clause 12 [Crane Award] – Redundancy

Clause 14 [Crane Award] – Allowances

Clause 16 [Transport Award] – Allowances

Clause 24.3 – Night Shift Allowance

Clause 32 [Manufacturing Award] – Allowances and Special Rates

Clause 24.10 [Crane Award] – Call back

Clause 27.4 [Transport Award] – Call Back

Clause 40.5 [Manufacturing Award] – Call Back

Clause 22.3 – 22.8 [Crane Award] – Shift Work”

[60] The Agreement contains entitlements that are not conferred by the Awards including:

“Employees that are affected are the classifications of Truck Drivers and Mechanics who get a travel allowance under clause 16.4

Those mechanics under the agreement receive overtime of time and a half for the first two hours then double time as opposed to time and a half for the first three hours. - Clause 15.17”

[61] The Agreement omits the following entitlements that are contained in the Awards:

“Clause 14 [Crane Award] – Allowances

Clause 16 [Transport Award] – Allowances

Clause 32 [Manufacturing Award] – Allowances and Special Rates

Clause 24.10 [Crane Award] – Call back

Clause 27.4 [Transport Award] – Call Back

Clause 40.5 [Manufacturing Award] – Call Back”

[62] In correspondence to AKN, I raised concerns in relation to whether the Agreement passes the BOOT which can be summarised as follows. Clause 17.6 of the Agreement includes training bond provisions which allow for training costs to be deducted from the final pay of an employee in certain circumstances. There are no limits or specified amounts in the Agreement for such deductions which makes makes assessment of the BOOT difficult to conduct. It appears that clause 17.6 provides that where an employee leaves within 6 months of completing the training period, the Company may deduct 100% of training costs.

[63] This could mean that employees are not better of overall under the Agreement depending on the total cost of the training undertaken and if that deduction results in an employee being paid less than what an award employee would stand to receive with no training deductions in the relevant Award(s). I also expressed concern that deductions in such circumstances may also be inconsistent with s.324 of the Act which relates to permitted deductions from wages. Further I expressed the view that employees can agree in advance to an amount of money being deducted from their wages in circumstances where the amount is not known when the agreement is reached.

[64] I also raised an issue with the shift work provisions in the Agreement not prescribing a penalty payment for employees who work on an afternoon or night shift that does not continue for 5 successive shifts. The Manufacturing, Road Transport and Mobile Crane Awards all prescribe penalty payments in such circumstances. Modelling conducted by the Commission’s Agreements Team indicates that employees are not better off overall where they work 4 shifts (paid at rates equivalent to overtime) and 1 ordinary shift (paid at ordinary rates). A further BOOT issue raised by me is that clause 19.9 of the Agreement requires that other than in the probation period employees must give two weeks’ notice to resign their employment. This amount of notice exceeds the one week that employees are required to give under each of the Manufacturing, Road Transport and Mobile Crane Awards and places an additional requirement on employees that would not be placed on them under the Awards. Further, this situation exposes employees to a deduction from wages for not giving required notice that exceeds the quantum of the deduction they would be exposed to under the Award.

[65] The BOOT issues raised by the CFMMEU can be summarised as follows. In relation to wage rates, the CFMMEU submits that the AKN’s assertions are contradictory in that AKN declares that wage rates are more beneficial whilst also submitting that it has been identified in the Form F17 that loaded rates payable under the Agreement may constitute a less beneficial term.

[66] The CFMMEU accepts that the Agreement provides a 25% loading for shift work on night shift only but submits that the Crane Award provides for shift work loadings on day, afternoon and night shift. Additionally the Agreement does not contain the following terms which are found in the Crane Award:

•  Clause 22.3 – when an employee works less than 5 days of successive afternoon or night shift, they are entitled to 50% loading for the first two hours and 100% loading thereafter (in addition to their ordinary rate of pay);

•  Clause 22.4 and clause 22.5 – where an employee is working on a site where there is higher shift premiums and/or arrangements for compensation in the form of annual leave or leave loading for working shift on a Saturday, Sunday or public holiday, an employee is entitled to the superior condition and/or premium;

•  Clause 22.6, clause 22.7, clause 22.8 – respectively confirm that Saturday will be paid at overtime rates, Sunday at double time and public holidays at double time and a half.

•  Clause 22.9 – entitles an employee to double time for all work performed outside ordinary shift hours

•  Clause 22.19 – requires an employer to give a day worker one weeks’ notice in the event they are required to perform shift work or alternatively, the employee will be entitled to payment of penalty rates.

[67] In relation to overtime, the CFMMEU submits that despite the Agreement providing for overtime at time and a half for the first two hours and double time thereafter, the Agreement does not provide for payment at double time for all work performed on Saturdays after 12 noon as is the case under clause 24.2 of the Mobile Crane Award. The Agreement also does not provide for a minimum of four hours payment for work performed on Saturday, Sunday or public holidays as does clause 24.5 of the Mobile Crane Award. There is no equivalent entitlement to overtime rates for travel outside ordinary hours as found in clause 24.5 of the Mobile Crane Award or payment at double time where there isn’t a break of 10 hours between shifts as provided in clause 24.9 of the Mobile Crane Award. The Agreement also does not provide for minimum entitlements on call back, standby or additional penalties for overtime past midnight, or work commencing between 12am and 2am. The meal allowance provided for in the Agreement is $15.00 whereas it is $15.06 under the Mobile Crane Award. Additionally, the Agreement does not provide for a meal allowance when work is commenced on or before 5am.

[68] In addition to the matters identified by AKN as less beneficial when compared with the Award, or those entitlements that are omitted from the Agreement, the CFMMEU has submitted a “non-exhaustive list” of areas that fall below the Mobile Crane Award minimum entitlements and which it is contended would result in an employee being worse off under the Agreement:

•  The termination of employment provision would require an employee with 1 or less years of continuous service to provide greater notice of resignation than is required by the Mobile Crane Award;

•  The Agreement provides for inferior calculation of redundancy entitlements when compared with the Mobile Crane Award and inferior payment terms in respect of public holidays and accumulated sick leave payable to retrenched employees;

•  The Agreement does not contain a number of allowances otherwise provided for in the Mobile Crane Award;

•  The inclement weather provision of the Agreement does not define inclement weather, leaving the determination of such matters to AKN and in addition the Agreement expands the list of duties an employee can be directed to complete during times of inclement weather than otherwise contained in the Mobile Crane Award;

•  The averaging system in relation to ordinary hours of work and the allocation of ordinary hours of work is disadvantageous when compared with the Mobile Crane Award;

•  RDO’s are treated in a manner that is less beneficial than the Mobile Crane Award;

•  The Agreement provides for a broad discretion in AKN to adjust the span of ordinary hours by minimal notice and potentially depriving employee’s access to overtime and meal allowance entitlements;

•  Shiftworkers are, for reasons expressed above, worse off under the Agreement than they would be under the Mobile Crane Award;

•  The treatment of meal breaks including when meal breaks are taken, payment of overtime where breaks not taken within 6 hours of commencing and payment of meal allowances are all worse off under the Agreement then under the Mobile Crane Award;

•  Overtime is less beneficial than the Mobile Crane Award; and

•  The Agreement is more onerous in its treatment of annual leave including no express inclusion of access to single annual leave days, the notice required by an employee to access annual leave, no leave loading on termination and no provision permitting access to paid annual leave in advance of accrual.

AKN submissions and undertakings in relation to NES and BOOT issues

[69] Following receipt of email correspondence from the Commission and the CFMMEU’s written outline of submissions, AKN responded by email offering undertakings in an attempt to address some of the issues which had been identified. Those undertakings did not address all of the outstanding issues and the application for approval of the Agreement was listed for hearing.

[70] At the hearing AKN made submissions in relation to the BOOT and NES issues raised in my correspondence and in response to matters raised by the CFMMEU. AKN submits that the BOOT is not a line by line test but requires identification as to advantageous, neutral and non-advantageous terms, followed by an overall balancing. Such an overall assessment indicates that the Agreement does pass the BOOT. AKN also filed two spreadsheets to support its submission that the Agreement passes the BOOT. The spreadsheets have been calculated on the basis of two sample rosters. The first sample roster assumes a 38 hour working week and the second sample roster assumes as much as 60 hours per week. Employees covered by the Agreement would not ordinarily work in excess of 60 hours per work.

[71] In relation to the NES issues, AKN submits that clause 5 resolves inconsistency between the Agreement and the NES. Clause 5 states that where there is an inconsistency between the two, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency.

[72] Following the hearing the CFMMEU again corresponded with the Commission providing further calculations said to establish that the Agreement does not pass the BOOT when considered against the Crane Award. That modelling is said to reflect what the CFMMEU considers are two plausible scenarios for a rigger engaged under Appendix C of the Agreement which provides for Project employees. The first scenario involves an employee working 12 hours a day between Wednesday and Sunday and the second scenario involves an employee working a 60 hour week including a public holiday. In the first scenario the employee is $55.00 per week worse off under the Award and in the second scenario the employee is $242.00 per week worse off. The CFMMEU also submitted that there are other scenarios where employees may be marginally better off in a financial sense but that such marginal financial advantage needed to be considered in the context of the raft of other BOOT matters both monetary and non-monetary set out in the CFMMEU’s submissions.

[73] AKN responded to the CFMMEU’s further submissions and to questions raised by me at the hearing about the impact of Sunday work on BOOT calculations, and offered undertakings including additional undertakings to those previously offered, as follows:

“On behalf of AKN Pty Ltd ("the Company"), in relation to the application for approval of the AKN Pty Ltd National Employee Services Agreement 2019, ("the Agreement"), the Company gives the following undertakings:

Definition of a shiftworker

For the purpose of the additional week of annual leave provided for in s.87(1)(b) of the Fair Work Act 2009 ("the Act"), for employees engaged in the classifications of Mechanic and Truck Driver, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays.

National Employment Standards

For Clause 22.5 of the Agreement, the Company undertakes that the notice period for taking of personal/carers leave is required to be given as soon as practicable (which may be a time after the leave has started) in accordance with section 107(2) of the Act.

For Clause 23 of the Agreement, the Company undertakes that Employees are entitled to 2 days paid compassionate leave for each occasion when an Employee's immediate family or a member of the employee's household are seriously ill, have had a serous injury or upon death of an individual.

The Company undertakes that an employee will be entitled to 10 days personal leave per year, 4 weeks annual leave (5 weeks for shiftworkers as defined) per year and 2 days compassionate leave per occasion, regardless of the number of ordinary hours in the relevant leave periods.

The Company undertakes not to apply clauses 19.12 and 17.6 (ii) and (iii) in their entirety.

For Clause 19 .16 of the Agreement, the Company undertakes to provide any required period of notice in accordance with section 117 of the Act in any case where an employee abandons their employment.

For Clause 20(a) of the Agreement, the Company undertakes to provide employees with at least two (2) years but less than three (3) years continuous service with 6 week's redundancy pay in accordance with the NES.

For Clause 20 (b) of the Agreement, the Company undertakes to make an application to the Commission under s120 of the Act, obtaining an order which provides the employee is not entitled to redundancy pay (if an offer of suitable employment is rejected by the eligible employee) before varying any redundancy payment under the Agreement.

Annual leave paid out to employees on termination will incorporate payments for annual leave loading that would have been payable, had the employee taken the leave.

Better off Overall Test [BOOT]

The Company undertakes that where an Employee works less than five (5) successive night shifts the Employees will receive a 50% shift loading for each night worked in lieu of the regular 25%.

For Clause 19.9 of the Agreement, the Company undertakes that where an employee has been employed for less than one (1) year, they are only required to provide one (1) weeks' notice of termination.

In the event an employee performs a pattern of work such that the employee would be entitled to a day shift loading of 25% under the Mobile Crane Hiring Award 2010, the employee will receive an addition al 15% loading for such day shifts worked.

In relation to meal breaks, the Company undertakes that an employee will be entitled to overtime rates in the event that they have not been able to take a meal break within 6 hours of commencing their shift, until such time as they have taken their meal break.

Where an employee resumes or continues work without having had 10 consecutive hours off duty, the employee will be paid at double time rates until released from duty for such a period and will then entitled to be absent until they have had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

In circumstances where an employee is required to travel from a depot to a site / sit e to the depot outside of their ordinary working hours, they will be paid at the approp iate overtime rates for the period of such travel.

In relation to an employee being recalled to work after leaving the Company's premises, the Company undertakes to pay an employee a minimum of 4 hours pay at the appropriate rate when an employee is called back to work.

The Company will provide employees with accident pay in accordance with clause 14.5 of the Mobile Crane Hiring Award 2010, where the employee would qualify for accident pay under the Award.

Where an employee works pursuant to the rates in Appendix B or C, the Company will:

•  Conduct regular reviews of the payments made to the employee pursuant to the Agreement as compared to the relevant Award that would otherwise apply to the employee. These reviews will be conducted on at least a monthly basis or on termination of an employee's employment.

•  Where the review identifies that the employee's payment would have been higher under the relevant Award in any pay cycle, the Company will ensure that the employee receives a back-payment that eliminates any shortfall in the payments the employee received as compared to the Award. The back-payment will be processed in the next pay cycle following the completion of the review.

Conclusion in relation to NES and BOOT issues

[74] While the NES issue I raised with respect to clause 19.16 of the Agreement has not specifically been addressed by the undertakings offered, I accept, on further consideration, that it is improbable that there would be non-compliance with the NES in the event that the employer terminates the employment of an employee by accepting that the employee has abandoned his or her employment. This is because s. 117(2) of the Act requires that notice of termination be given or payment in lieu made, of at least the amount the employer would have been liable to pay to the employee at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice. In circumstances where the employee has not attended for work and has failed to notify the employer so that abandonment provisions in the Agreement are invoked, it is unlikely that the employee would be entitled to payment. In circumstances where an entitlement may arise I accept that the NES precedence clause in the Agreement would apply.

[75] The undertaking in relation to back pay for employees under Appendix B and C does not fully address the BOOT issues raised with AKN. The undertaking offered by AKN provides that if it is identified that an employee’s payment would have been higher under the Award for a particular cycle, the back-payment would eliminate any shortfall. As a result, the extent of the back-payment would be to ensure that employees are paid the award rate for working the particular hours. This will not necessarily result in employees being better off under the Agreement than they would be under the Award, in such circumstances. If the undertaking was amended to provide that the back-payment would result in the relevant employees being better off than the employees would be for working the same hours under the relevant Award, I would accept it as resolving the issue and would approve the Agreement on the basis of the undertakings as amended in accordance with my suggestion.

CONCLUSIONS AND NEXT STEPS

[76] I am generally satisfied that each of the requirements of ss.186 187 and 188 as are relevant to this application for approval have been met. For the reasons set out above, I am satisfied that necessary pre-approval requirements were met and that the Agreement was genuinely agreed. Pursuant to s. 188(c) there are no other reasonable grounds for believing that the Agreement is not genuinely agreed. In summary with respect to the issues canvassed in the hearing I find as follows:

•  AKN has taken all reasonable steps to give notice of the right to be represented by a bargaining representative to relevant employees;

•  That notice complies with content and form requirements of s.174 of the Act;

•  On the basis of the undertakings provided, and clause 5(a) of the Agreement, the terms of the Agreement do not contravene s.55 of the Act;

•  In the circumstances, the Agreement does not lack authenticity or moral authority;

•  The Agreement has been genuinely agreed to by employees, specifically:

◦  AKN has taken all reasonable steps to ensure that relevant employees were given a copy of the written text of the Agreement;

◦  There is no other material incorporated by reference into the Agreement such that it was necessary for AKN to have taken all reasonable steps to provide it;

◦  In any event, AKN has taken all reasonable steps to provide AKN’s policies to employees; and

◦  AKN has taken all reasonable steps to ensure that the terms of the Agreement, and effect of those terms, have been explained in an appropriate manner; and

•  The Agreement passes the better off overall test subject to the outstanding BOOT issue being addressed with respect to employees covered by Appendix B and C of the Agreement.

[77] I therefore provide AKN with a further and final opportunity to consider providing the undertaking in terms suggested above and to provide the undertakings in a consolidated form after seeking the views of the bargaining representatives. On receipt of such undertakings I will approve the Agreement. If AKN does not agree to provide the suggested amended undertaking the Company should advise my Chambers of this by 4.00 pm on Tuesday 10 December 2019.

DEPUTY PRESIDENT

Appearances:

Mr L Izzo of Australian Business Lawyers for the Applicant.

Ms E Barnes-Whelan for the CFMMEU.

Hearing details:

2019.

13 August.

Brisbane with video-link to Melbourne.

Printed by authority of the Commonwealth Government Printer

<PR714999>

 1   [2016] FWCFB 8413.

 2   [2011] FWAFB 5163.

 3 [2018] FCAFC 77 at [112].

 4   Ibid at [115] to [116].

 5   [2019] FWCFB 6960.

 6 [2017] FCA 1266.

 7 [2017] HCA 53.