Australian Communication Exchange Limited

[2017] FWC 4197

[2017] FWC 4197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Communication Exchange Limited
(AG2017/2263)

AUSTRALIAN COMMUNICATION EXCHANGE LIMITED – ENTERPRISE AGREEMENT 2016

Telecommunications services
DEPUTY PRESIDENT KOVACIC	CANBERRA, 11 AUGUST 2017

Application for approval of the Australian Communication Exchange Limited – Enterprise Agreement 2016.

[1] An application was received by the Fair Work Commission (the Commission) on 16 June 2017 for approval of an enterprise agreement known as the Australian Communication Exchange Limited – Enterprise Agreement 2016 (the Agreement). The application was made by Australian Communication Exchange Limited (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Background

[2] The Applicant is a telecommunications service provider for people who are deaf, hearing-impaired or speech impaired. The Applicant is the sole Relay Services Provider of the National Relay Service (NRS) which is governed by the Australian Communication and Media Authority on behalf of the Commonwealth. As part of the NRS, the Applicant provides persons who are deaf, hearing and speech impaired with access to a standard telephone service on terms comparable to that which is enjoyed by other Australians. Relay Officers are employed to facilitate calls which is done by a variety of means such as via text, internet or via telephone typewriter. The Applicant also provides an emergency call service which is similar to the 000 service.

[3] The Australian Municipal and Clerical Services Union Queensland Together Branch (the ASU) was a bargaining representative for the Agreement. Mr Alex Scott, Secretary of the ASU’s Queensland Together Branch, declared in his Form F18 – Statutory declaration of an employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) that the ASU did not support approval of the Agreement. Mr Scott further deposed, inter alia, that:

• given the 2016/17 Annual Wage Review decision the ASU was not confident that the Agreement passed the better off overall test (BOOT); and



• the Applicant’s Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) did not acknowledge that employees working shifts finishing after 7.00pm and at or before midnight only received a penalty on hours worked after 6.00pm as opposed to the whole shift as per the Telecommunications Services Award 2010 1 (the Award).

[4] On 27 June 2017 the Applicant’s representative forwarded to the Commission a further statutory declaration from Mr Peter Gilliland, the Applicant’s Chief Executive Officer, which responded to the issues raised in Mr Scott’s Form F18. Among other things, Mr Gilliland declared as follows:

“2. I also refer to the Statutory Declaration of Alex Scott …

3. Paragraph 4 of the Form F18 states, among other things, that employees of ACE meet the definition of a “shift worker”.

4. As stated in section 2.16 of the Form F17, there are no “shiftworkers” covered by the proposed Enterprise Agreement because ACE operates a preferential roster system, whereby employees elect the hours that they work and swap hours to suit their preferences. The hours that employees work are also dependent on operational requirements and call demands. ACE employees are therefore not, in the sense relevant to the definition of “shiftworker”, regularly rostered to work:

(a) on any particular shift;

(b) on any afternoon or night shift; or

(c) ordinary hours of work on Sundays and public holidays.

5. Employees’ ordinary hours of work vary from week to week and employees do not have any expectation of being rostered to work particular hours on a particular day.

6. ACE does not operate in what could be described as a “standard or usual” call centre environment that would normally consist of a continuous shift or regular roster arrangement. ACE has very unique operational demands and has structured resourcing practices to provide employees with a more favourable preference-based rostering system.”

[5] In view of the ASU’s concerns, on 4 July 2017 the Commission listed the application for telephone hearing on 11 July 2017, with that hearing later rescheduled to 17 July 2017 at the request of the Applicant.

[6] On 12 July 2017 Mr Michael Thomas, the ASU’s Director Industrial Services, forwarded to the Commission additional material for consideration in respect of the application. The material comprised copies of correspondence which he sent to Ms Maria Mallinson, the Applicant’s Chief Compliance Officer, on 16 June 2017 and to Mr Gilliland on 23 June 2017. Attached to both of those letters were tables 2 comparing what an employee would have been paid under the Agreement and under the Award for working the same pattern of hours. In the letter of 16 June 2016 Mr Thomas stated that the ASU had “been provided with copies of several current rosters and … we have found examples of rosters that will not meet the BOOT.” The comparisons prepared by the ASU were all premised on the hourly Award rate of pay for a Customer Contact officer Level 1 applying as at 1 July 2017 (i.e. $20.21 per hour) with the comparisons showing employees worse off under the Agreement.

[7] Also on 12 July 2017 the Applicant’s representative forwarded the Commission a copy of Ms Mallinson’s response of 21 June 2017 to Mr Thomas’ correspondence and separate correspondence to the Commission which, among other things, highlighted a number of errors in the ASU’s comparison tables. With regard to the latter correspondence, the Applicant stated as follows:

“It is not clear on what the Union has based its calculations, however the calculations appear to be incorrect in a number of respects, including:

(a) by failing to take into account the value of the additional week of annual leave provided to all employees, despite those employees not being shiftworkers;

(b) by failing to take into account the additional $4.25 per hour overnight allowance payable for hours worked after 10:00pm; and

(c) by being calculated on rates that do not reflect the applicable Award rates at the “test time” for the purposes of section 193(6) of the Act (16 June 2017).”

[8] Attached to the Applicant’s correspondence to the Commission were calculations prepared by the Applicant based on hours which employees had elected to work and did work in the period 13 to 26 June 2017 which showed that the employees were better off overall under the Agreement when compared to the Award.

[9] At the telephone hearing, Mrs Hedy Cray appeared with permission for the Applicant, while Mr Thomas appeared for the ASU.

[10] The hearing concluded on the basis that the Applicant would provide any further information it may wish to in respect of the operation of the Award’s provisions regarding spread of hours and overtime relative to the Agreement, with the ASU having an opportunity to respond. The Applicant provided its material on 18 July 2017 and on 20 July 2017 the ASU advised that it had nothing to add to its submissions.

The Applicant’s case

[11] At the telephone hearing, the Applicant drew the Commission’s attention to the more beneficial provisions of the Agreement when compared to the Award. More particularly, the Applicant highlighted a number of more beneficial provisions, including the Agreement’s:

• higher base rates of pay;



• bonus payment which the Applicant submitted had been paid to every employee since July 2013 and described as a “come to work bonus”;



• higher duties payments and a $10 call-in payment which were not provided for in the Award;



• payment of a $4.25 per hour overnight allowance in circumstances where employees were required to work between the hours of 10pm and 6am;



• access to paid breaks not provided for in the Award;



• overtime provisions which provided for all overtime to be paid at double time except on public holidays when it was paid at quadruple time;



• enhanced redundancy benefits;



• additional week’s annual leave which was provided to all employees;



• minimum engagement period of four hours for casuals;



• preferential rostering system; and



• provision for domestic violence leave.

[12] The Applicant submitted that its preference based rostering system was a significant point for the attraction and retention of staff. The Applicant acknowledged that not all employees were granted their preferred hours of work in a roster period but that 93 per cent of employee preferences were achieved as at test time, adding that the remaining 7 per cent of employees were given priority in respect of their preferred hours of work when the next roster was compiled. Beyond that, the Applicant submitted that:

• the ASU had in respect of the predecessor agreement, the Australian Communication Exchange Limited – Enterprise Agreement 2012 3(the 2012 Agreement), acknowledged that the Applicant’s preferential rostering system would not meet the definition of shiftworker in the Award;



• it did not regularly roster employees to work ordinary hours of work but rather allowed employees to elect the hours they would prefer to work;



• it did not regularly roster employees to work Sundays and public holidays as required by clause 23.2 of the Award;



• no employee had a right to work on any particular day;



• it was unable to provide the ASU with copies of rosters as the pattern of hours worked by employees reflected their preferences as opposed to the times that they were required by the Applicant to work, adding that the provision to the ASU of non-member records was also a consideration in this regard; and



• there may be some regular afternoon or night patterns performed by employees but, having regard to the definition of shiftworker in the Award, the Applicant did not regularly roster employees to work Sundays and public holidays.

[13] In response to a question from the Commission, the Applicant advised that it operated on a 24/7 basis.

[14] The material which the Applicant’s representative provided to the Commission on 18 July 2017 included the following:

“As explained to the Commission during the conference and in our correspondence of 12 July 2017, as well as in the statutory declarations of Mr Gilliland, our client operates a preferential rostering system as provided for in clauses 4.8.2 and 4.2.2 of the proposed Enterprise Agreement, and does not roster employees in a mandated pattern of work.

Our client submits that there is therefore no “roster cycle” implemented under the Agreement which would lead to some employees being designated as “day workers” under the Award. Accordingly, no spread of ordinary hours is included in the proposed Enterprise Agreement. However, all employees are entitled under the proposed Enterprise Agreement to overtime for work outside of ordinary hours on the same basis as under the existing agreement. In the circumstances, the absence of a spread of ordinary hours in the proposed Enterprise Agreements [sic] is not a detriment for the purposes of the better off overall test.

…

Even if, contrary to our client’s submissions, an employee of our client met the definition of a shift worker for the purpose of Clause 23.2 of the Award because they were “an afternoon or night shiftworker who is rostered to regularly work ordinary hours of work on Sundays and public holidays” and were therefore entitled to 5 weeks of annual leave, they would still be better off overall under the Agreement than under the Award.

That is so because, in addition to the other benefits outlined in Attachment G to our client’s Form F17, such “an afternoon or night shiftworker” would receive:

(a) for ordinary hours of work on Sundays, a rate of pay that is 7.5% above the Award, and for overtime on Sundays, a rate of pay that is 43.35% above the Award for the first three hours and 7.5% above the Award thereafter; and

(b) for ordinary hours of work on public holidays, a rate of pay that is between 34.4% and 7.5% above the entitlement under Clause 26.3(a) of the Award, and for overtime on public holidays, a rate of pay that is between 115% and 72% above the entitlement under Clause 26.3(a) of the Award.”

The ASU’s case

[15] The ASU submitted that it was not in a position to categorically agree with the Applicant’s statutory declaration that the Agreement passed the BOOT, primarily as a result of the significant reductions in penalties under the Agreement for afternoon shift work and for Saturday work. With regard to what it characterised as the three primary arguments advanced by the Applicant in supporting approval of the Agreement, the ASU submitted that:

• the bonus payment was a contingent benefit and as such little weight should be attached to the bonus payment for the purposes of the BOOT;



• in respect of the Applicant’s contention that as a result of it preferential rostering system no worker was a shift worker as defined in the Award, it was not the case that all employees were rostered to work the times which they requested;



• the Applicant’s position in this regard was premised on the process by which it allocated shifts rather than the pattern of the shifts worked, adding that this approach was inconsistent with the decision in Elizabeth O’Neill v Roy Hill Holdings Pty Ltd 4 (Roy Hill); and



• the Commission should have regard to the Award rate of pay as adjusted to include the 2016-17 Annual Wage Review increase given the requirement to determine that each prospective employee would be better off overall under the Agreement.

[16] Beyond that, the ASU acknowledged that the Agreement contained a number of more beneficial provisions and submitted that the Applicant had not provided it with a copy of rosters, adding that this required it to speak to members to obtain a copy of their rosters and to develop indicative rosters. Finally, the ASU contended that it understood that there were a group of employees who tend to work afternoon, day and weekend, submitting that their pattern of hours was not random.

The statutory framework

[17] The relevant provisions of the Act are set out below.

186 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.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the employees covered by the agreement; and

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

(c) the terms of the agreement do not contravene section 55 (which deals with the interaction between the National Employment Standards and enterprise agreements etc.); and

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

Note 1: For when an enterprise agreement has been genuinely agreed to by employees, see section 188.

Note 2: The FWC may approve an enterprise agreement that does not pass the better off overall test if approval would not be contrary to the public interest (see section 189).

Note 3: The terms of an enterprise agreement may supplement the National Employment Standards (see paragraph 55(4)(b)).

Requirement that the group of employees covered by the agreement is fairly chosen

(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.

(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.

Requirement that there be no unlawful terms

(4) The FWC must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).

Requirement that there be no designated outworker terms

(4A) The FWC must be satisfied that the agreement does not include any designated
outworker terms.

Requirement for a nominal expiry date etc.

(5) The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii) in relation to the National Employment Standards; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

Note 1: The FWC or a person must not settle a dispute about whether an employer had reasonable business grounds under subsection 65(5) or 76(4) (see subsections 739(2) and 740(2)).

Note 2: However, this does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4).

187 When the FWC must approve an enterprise agreement—additional requirements

Additional requirements

(1) This section sets out additional requirements that must be met before the FWC approves an enterprise agreement under section 186.

Requirement that approval not be inconsistent with good faith bargaining etc.

(2) The FWC must be satisfied that approving the agreement would not be inconsistent with or undermine good faith bargaining by one or more bargaining representatives for a proposed enterprise agreement, or an enterprise agreement, in relation to which a scope order is in operation.

Requirement relating to notice of variation of agreement

(3) If a bargaining representative is required to vary the agreement as referred to in subsection 184(2), the FWC must be satisfied that the bargaining representative has complied with that subsection and subsection 184(3) (which deals with giving notice of the variation).

Requirements relating to particular kinds of employees

(4) The FWC must be satisfied as referred to in any provisions of Subdivision E of this Division that apply in relation to the agreement.

Note: Subdivision E of this Division deals with approval requirements relating to particular kinds of employees …

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.

FWC must disregard individual flexibility arrangement

(2) If, under the flexibility term in the relevant modern award, an individual flexibility arrangement has been agreed to by an award covered employee and his or her employer, the FWC must disregard the individual flexibility arrangement for the purposes of determining whether the agreement passes the better off overall test.

…

Award covered employee

(4) An award covered employee for an enterprise agreement is an employee who:

(a) is covered by the agreement; and

(b) at the test time, is covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) covers the employee in relation to the work that he or she is to perform under the agreement; and

(iii) covers his or her employer.

Prospective award covered employee

(5) A prospective award covered employeefor an enterprise agreement is a person who, if he or she were an employee at the test time of an employer covered by the agreement:

(a) would be covered by the agreement; and

(b) would be covered by a modern award (the relevant modern award) that:

(i) is in operation; and

(ii) would cover the person in relation to the work that he or she would perform under the agreement; and

(iii) covers the employer.

Test time

(6) Thetest timeis the time the application for approval of the agreement by the FWC was made under subsection 182(4) or section 185.

FWC may assume employee better off overall in certain circumstances

(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”

Consideration of the issues

[18] As previously outlined, the ASU contended that it was not able to support the approval of the Agreement as it was not in a position to categorically agree with the Applicant’s statutory declaration that the Agreement passed the BOOT. On the other hand, the Applicant contended that the Agreement passed the BOOT.

[19] As noted above, the ASU provided estimated earnings under both the Agreement and the Award based on the same patterns of hours of work, with the Award rate of pay used in those calculations being the rate which took effect on 1 July 2017 and incorporated the 2016-17 Annual Wage Review increase. Section 193(1) of the Act provides that an agreement passes the BOOT “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.” Further, s.193(6) of the Act specifies that 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.” In this case, the test time is 16 June 2017 which is before the 2016-17 Annual Wage Review increase came into effect. Accordingly, the ASU’s calculations are infected by error in that the appropriate Award hourly rate of pay it used in its calculations should have been the rate as at 16 June 2017 being $19.56 per hour, as opposed to the $20.21 per hour figure it used. When the correct hourly rate is used as the basis for the ASU’s calculations those calculations show that the employees are better off overall under the Agreement.

[20] As to the ASU’s contention that the Commission should have regard to the 2016-17 Annual Wage review increase for the purposes of the BOOT, as can be seen from above, the terms of s.193 of the Act are unambiguous and do not permit such an approach.

[21] With regard to the BOOT, as can be seen from above, the Agreement provides a number of more beneficial provisions than the Award. However, as highlighted by the ASU in its submissions the Agreement provides for lower penalties for afternoon shift work and for Saturday work when compared to the Award. This was acknowledged by the Applicant in its Form F17 which stated as follows:

“Under the Agreement, employees receive a higher shift allowance for hours worked between 10 pm and 6 am Monday to Friday, and also receive a higher shift allowance between 7 am and 1 pm Saturday.

Under the Agreement, employees do not work shifts that would attract the 30% night shift allowance, as a result of the preferential roster system and the absence of a set shift pattern or shift arrangements.

With respect the weekend penalty rate, staff receive the 30% penalty for all hours worked on a Saturday not just for hours between midnight Friday and 7am on Saturday.

Employees required to work between 10pm and 6am receive an additional allowance of $4.25 per hour (19% of base hourly rate).

While the penalties between midnight on Friday and 7 am on Saturday, and from 1 pm Saturday to Midnight on Saturday a lower than the Award, as employees receive a higher rate of pay and are entitled to overnight allowances, and higher allowances at other times, as a result, employees remain better off under the agreement.” 5

[22] By way of background, clauses 20.6 to 20.8 of the Award concerning hours of work provides as follows:

“20.6 Provisions applicable only to day work

(a) Except as provided for in clauses 20.6(b) and (c), the ordinary hours of work for day work will be worked between the following spread of hours:

(i) Monday to Friday—7.00 am to 7.00 pm; and

(ii) Saturday—7.00 am to 1.00 pm.

(b) Flexibility in relation to day work hours

(i) The following forms of flexibility may be implemented in respect of all employees in a workplace or section/s thereof, subject to agreement between the employer and the majority of the employees concerned in the workplace or relevant section/s. Agreement in this respect may also be reached between the employer and an individual employee:

• the spread of hours in clauses 20.6(a)(i) and (ii) may be altered by up to one hour at one or both ends of the daily spread;



• in excess of 10 hours and up to 12 hours of ordinary time may be worked per day, exclusive of meal breaks. The implementation of 12 hour days is subject to the provisions of clause 20.12; and



• a roster may operate on the basis that the weekly average of 38 ordinary hours is worked over a period which exceeds 28 consecutive days but does not exceed 12 months.

(ii) Where an agreement is reached by the majority of employees it will apply to all the employees in the workplace or section/s to which the agreement applies. This does not in any way restrict the application of an individual agreement.

(iii) Where an agreement is reached in accordance with clause 20.6(b), the agreement will be recorded in the time and wages records.

(c) Flexibility in relation to day work on Saturday afternoon and Sunday

(i) By agreement between an individual employee and the employer, the days on which ordinary hours are worked may include Saturday afternoon between 1.00 pm and 7.00 pm and Sunday between 7.00 am and 7.00 pm, subject to the penalty in clause 20.8.

(ii) Where an agreement is reached in accordance with clause 20.6(c)(i), the agreement will be recorded in the time and wages records.

(d) The provisions of clause 20.6(c) are not applicable to employees who work day work as part of a rotating roster which incorporates a cycle of day work, afternoon shifts and/or night shifts. In such circumstances, the ordinary hours of work will be worked at the discretion of the employer on any day of the week, Monday to Sunday, subject to clauses 20.5 and 20.8.

(e) Any work performed outside the spread of hours is to be paid at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours is to be regarded as part of the 38 ordinary hours of work.

20.7 Provisions applicable only to afternoon or night shifts

(a) The provisions of this clause apply only to time worked on afternoon and night shifts and do not apply to time worked during the day.

(b) The ordinary hours of work for afternoon and night shiftworkers will be worked at the discretion of the employer on any days of the week, Monday to Sunday, subject to clause 20.5 and the penalty in clause 20.8.

(c) For the purposes of this award:

(i) Subject to clause 20.6(b), afternoon shift means any shift finishing after 7.00 pm and at or before midnight.

(ii) Night shift means any shift finishing subsequent to midnight and at or before 9.00 am.

(d) Employees on an afternoon shift are entitled to a penalty of 15%.

(e) Except as provided for in clause 20.7(f), employees on a night shift are entitled to a penalty of 15%.

(f) …

20.8 Weekend penalty rate

(a) Employees are entitled to a rate of time and a half for ordinary time worked:

(i) between midnight on Friday and 7.00 am on Saturday; and

(ii) between 1.00 pm on Saturday and midnight on Sunday.

(b) The rate in clause 20.8(a) is in substitution for and not cumulative upon the afternoon and night shift loadings prescribed in clauses 20.7(d) and (f).” (Underlining added)

[23] The Applicant’s submissions regarding its preferential rostering system are in essence that there are no afternoon or night shiftworkers as per the Award because to the extent that employees work hours which might come within the definitions of afternoon and night shift in the Award, those hours are not worked at the discretion of the employer as per clause 20.7(b) of the Award. In support of that contention the Applicant also pointed to the undertaking which was accepted by the Commission in approving the 2012 Agreement. That undertaking provided as follows:

“The Australian Municipal, Administrative, Clerical and Services Union, acknowledges that whilst Australian Communication Exchange Pty Ltd operates a preference based roster system they will not meet the requirements and definition of shift worker.” 6

[24] Clause 23.2 – Annual Leave of the Award defines a shiftworker as follows:

“23.2 For the purposes of the provisions of the NES which deal with annual leave, a shiftworker is an afternoon or night shiftworker who is rostered to regularly work ordinary hours of work on Sundays and Public holidays.”

[25] I note that the definition of shift worker in clause 23.2 of the Award is for the purposes of annual leave. Accordingly, it provides little guidance in respect of the BOOT given that the Agreement already provides for an additional week’s annual leave for all employees. I would also note that the decision in Roy Hill which considered, among other things, whether the applicant in that case qualified for the shiftworker annual leave entitlement under the National Employment Standards in the Act is not relevant in the context of this matter.

[26] Beyond that, the Award does not define afternoon or night shift other than by reference to the time at which the shift concludes. While I note the Applicant’s contention that its preferential rostering system does not see employees rostered in a mandated pattern of work, the corollary of that argument would be that for the purposes of the BOOT any hours worked outside the spread of hours specified in the Award (i.e. 7am to 7pm) would for the purposes of the BOOT be considered overtime as per clause 20.6(e) of the Award. However, given the Applicant’s acknowledgement at the telephone hearing that there may be some regular afternoon or night patterns performed by employees, I am satisfied that regard should be had to the loadings specified in the Award for afternoon and night shifts and Saturday work for the purposes of the BOOT.

[27] Having regard to the various more beneficial and less beneficial provisions of the Agreement, together with the calculations provided by the Applicant and the ASU (as revised by the Commission using the correct hourly rate of pay as at test time), I am satisfied that employees are better off overall under the Agreement despite the different arrangements attaching to afternoon and night shifts and Saturday work under the Agreement. In coming to that conclusion I have had particular regard to the higher rates of pay provided for under the Agreement, the Overnight Allowance paid to employees working between 10pm and 6am and the additional week of annual leave provided to all employees (noting the Applicant’s submission that it did not regularly roster employees to work Sundays and public holidays). I have also estimated that an employee would receive a bonus payment in two quarters each year (noting the Applicant’s submission that the bonus had been paid to every employee since July 2013 and its characterisation of the bonus payment as a “come to work bonus”). My conclusion in this regard is, based on the Applicant’s submissions, premised on the Overnight Allowance specified in clause 3.4 of the Agreement being paid on an hourly basis. However, the Agreement is not clear that the Allowance is paid on that basis. Accordingly, I would require an undertaking from the Applicant which makes it clear that the Allowance is paid for each hour worked by an employee between 10pm and 6am.

[28] In addition, clause 5.6.2 of the Agreement provides that “An employee (other than a Casual Employee) shall be entitled to 2 days compassionate leave per occasion in accordance with the Act.” I note that s.106 of the Act provides that “For casual employees, compassionate leave is unpaid leave.” Against that background and on the basis that clause 5.6.2 of the Agreement does not meet the requirements of s.186(2)(c) of the Act, I would require an undertaking to address this issue.

Conclusion

[29] For all the above reasons, I am satisfied that subject to the provision of acceptable undertaking in respect of the two issues outlined above employees are better off overall under the Agreement. Upon provision of acceptable undertakings as requested above the Agreement will be approved.

Appearances:

N. Cray for the Applicant.

M. Thomas for the Australian Municipal and Clerical Services Union Queensland Together Branch

Telephone Hearing details:

2017.

Canberra and Brisbane:

July 17.

 1   MA000041

 2   The table attached to the letter to Mr Gilliland replicated one of the tables attached to the letter to Ms Mallinson

 3   AE895698

 4   [2015] FWC 2461

 5   Form F17 at page 2 of Attachment G

 6   [2012] FWAA 6412 at Annexure A

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