Application by Matthew Davies Summary

[2025] FWC 2064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.227A - Application to reconsider whether an enterprise agreement passes the better off overall test

Application by Matthew Davies

(AG2025/1971)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 17 JULY 2025

Application under s 227A – condition in s 227A(2) not met – application dismissed

Earlier this morning I dismissed an application made by Matthew Davies under s 227A of the Fair Work Act 2009 (Act). The application asked the Commission to reconsider whether the Coral Expeditions Ship Crew Enterprise Agreement 2023 (Agreement) passed the better off overall test (BOOT). Section 227A(1) provides that, if the condition in s 227A(2) is satisfied, an application may be made to the Commission for a reconsideration of whether an enterprise agreement passes the BOOT. Section 227(A)(2) states:

‘(2) The condition in this subsection is satisfied if:

(a) before approving the agreement the FWC had regard, under subsection 193A(6), to patterns or kinds of work, or types of employment engaged in, or to be engaged in, by:

(i)the award covered employees for the agreement; and

(ii)if the agreement is a single - enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies -- those employees; and

(b) at the test time or a later time, one or more employees covered by subsection (4) or (5) engaged in other patterns or kinds of work, or other types of employment, to which the FWC did not have regard under subsection 193A(6).’

The condition in s 227A(2) is plainly not satisfied in this case. The application does not identify any employees who are said to have engaged in patterns or kinds of work, or types of employment, to which the Deputy President did not have regard under s 193A(6).

Mr Davies misunderstands s 227A. He believes that the section allows the Commission to revisit the BOOT if someone alleges that it was not done properly the first time. This is wrong. Section 227A does not provide for a general review of the BOOT. It applies only when the condition in s 227A(2) is satisfied.

Mr Davies made various other submissions to the effect that the employer had not properly bargained for the Agreement and that the Commission should now make good faith bargaining orders. These submissions are misconceived. No such orders can be issued because the requirement of s 230(2) is not met.

The application was incompetent and was therefore dismissed.

DEPUTY PRESIDENT

Appearances:

M. Davies for himself
M. Goodwin and B. Baumgarten for the respondent

Hearing details:

2025
Melbourne (by telephone)
17 July

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Matthew Davies lodged an application under section 227A of the Fair Work Act 2009, requesting the Fair Work Commission to reconsider whether the Coral Expeditions Ship Crew Enterprise Agreement 2023 met the better off overall test (BOOT). The application arose from concerns about the fairness of the agreement and its implications for the employees. The matter was heard in Melbourne on 17 July 2025, with Matthew Davies appearing pro se and the respondent represented by M. Goodwin and B. Baumgarten. The Deputy President, Colman, dismissed the application, finding that the statutory condition for reconsideration under section 227A(2) was not met.

The key legal issue before the court was whether the statutory condition in section 227A(2) of the Fair Work Act 2009 had been satisfied. Section 227A(2) stipulates that the condition is met if, before approving the agreement, the Fair Work Commission had regard to certain patterns or kinds of work or types of employment, and at a later time, employees engaged in other patterns or kinds of work or types of employment to which the Commission did not have regard. Matthew Davies argued that the Commission should revisit the BOOT because the employer had not properly bargained for the agreement. However, the Deputy President found that the application did not identify any employees who engaged in work or employment to which the Commission had not had regard, thus the statutory condition was not satisfied. The Deputy President also clarified that section 227A does not allow for a general review of the BOOT but applies only when the condition is met.

In dismissing the application, the Deputy President noted that Matthew Davies had misunderstood the scope and application of section 227A. The Deputy President explained that section 227A does not permit a general review of the BOOT, but only allows reconsideration when the specific condition in section 227A(2) is fulfilled. The Deputy President also rejected Davies's submissions that the employer had not properly bargained for the agreement and that the Commission should issue good faith bargaining orders, as such orders could not be made because the requirement of section 230(2) was not met. Consequently, the application was deemed incompetent and was dismissed.

Application by Matthew Davies

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established