Australian Broadcasting Corporation

[2023] FWCA 2591

[2023] FWCA 2591

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Australian Broadcasting Corporation

(AG2023/1284)

ABC ENTERPRISE AGREEMENT 2022-2025

Broadcasting and recorded entertainment industry
COMMISSIONER MATHESON	SYDNEY, 17 AUGUST 2023

Application for approval of the ABC Enterprise Agreement 2022-2025

1. An application has been made for approval of an enterprise agreement known as the ABC Enterprise Agreement 2022 –2025 (Agreement). The application was made by the Australian Broadcasting Corporation (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The notification time for the Agreement was a date prior to 6 June 2023. In these circumstances, and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in relation to genuine agreement in force immediately prior to 6 June 2023.

1. Further, the Agreement was made prior to 6 June 2023. The effect of clause 67 of Part 13 of Schedule 1 of the Act is that the amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test do not apply to the agreement.

1. There were two union bargaining representatives for the Agreement, being the Media, Entertainment and Arts Alliance (MEAA) and the Community and Public Sector Union (CPSU). There were three other employee bargaining representatives. The MEAA filed a ‘Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement)’ in which it indicated it supported the approval of the Agreement and did not wish to advise the Commission that it disagreed with any statement in the employer’s declaration relating to the Agreement. The CPSU also filed a Form F18 (Form F18) indicating that while supportive of the Agreement’s approval, it had concerns that the Agreement may result in employees not being better off overall when compared to the Australian Broadcasting Corporation Enterprise Award 2016 (Award).

1. It is not in dispute that the Award is the relevant award for the purpose of the application of the better off overall test as set out in s.193 of the Act (BOOT). The Commission also raised concerns in relation to the BOOT.

1. Apart from the BOOT concerns raised by the CPSU and the residual BOOT concerns of the Commission which are dealt with below, I am satisfied, on the basis of the material before the Commission, that the approval requirements in ss.186 and 187 as relevant to the application are met.

The concern regarding ‘Rate B’ arrangements

1. Question 10 of the Form F17 asks ‘Does the agreement contain any terms or conditions of employment that are more beneficial than equivalent terms and conditions in the modern award(s) listed in your answer to question 8?’. The answer provided in the Form 17 is ‘yes’ as indicated in Annexures A and B to the Form F17. Annexure B to the Form F17 is a document entitled ‘BOOT analysis – ABC Enterprise Agreement 2022 – 2025’.

1. At Annexure B to the Form F17, the Applicant indicates that clause 21.5 of the Agreement dealing with ‘excluded employees’ is, compared to clause 21.2(c) of the Award and for the purposes of the BOOT:

• ‘More beneficial for employees earning between $134,526 and $197,348 as automatic exemption only applies when earning the higher salary.’

• ‘More beneficial for those who are “Rate B” employees because such employees receive at least 25% more than the annual minimum salary for the employee’s pay point under Schedule A or B of the EA. The 25% difference between the employee’s rate of pay and their base salary as stated in the contract of employment means that the employee is better off than under the Award because:

  othe minimum annual salary under the EA is higher than the minimum salary due to an employee under the Award…;

  othe employee will receive at least 25% more than the annual salary otherwise due to them under the EA;

  othe difference between the Rate Salary and the salary due under the Award more than compensates for additional payments in respect of the performance of work that the employee would be entitled to receive under the Award but would not under the EA (including penalties, overtime, meal allowance, additional annual leave for Sundays worked, annual leave loading, days off in lieu of public holidays and transitional meal allowance)’.

1. In its Form F18, the CPSU advised the Commission that while it was supportive of the approval of the Agreement by the Commission, it did not agree that employees deemed Rate B under the Agreement would be better off when compared with the Award.

1. The Commission also raised a concern about the absence of a mechanism for review or reconciliation in relation to those on a Rate B arrangement and sought submissions or undertakings addressing the concern about whether these employees would be better off overall compared to the Award.

Undertakings

1. The Applicant, who is also the employer covered by the Agreement, has provided written undertakings to address the concerns in relation to Rate B arrangements. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

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

(b)result in substantial changes to the Agreement.

1. Pursuant to s.190(3) of the Act, I accept the Undertakings.

1. Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

1. As bargaining representatives for the Agreement, the MEAA and CPSU have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 August 2023. The nominal expiry date of the Agreement is 1 October 2025.

COMMISSIONER

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Annexure A