BOC Limited
[2022] FWCA 3886
•4 NOVEMBER 2022
| [2022] FWCA 3886 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
BOC Limited
(AG2022/4235)
BOC Limited (CES) Enterprise Agreement 2022
| Manufacturing and associated industries | |
| DEPUTY PRESIDENT EASTON | SYDNEY, 4 NOVEMBER 2022 |
Application for approval of the BOC Limited (CES) Enterprise Agreement 2022.
BOC Limited (the Employer) has made an application for the approval of the BOC Limited (CES) Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.
Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.
The Agreement replaces the BOC Limited (CES) Enterprise Agreement 2019 (AE504557). In the course of finalising the text of the Agreement the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) proposed changes to the annualised salary provisions taken from the previous agreement. Some changes were agreed by the Employer and others were not. All 22 employees who were eligible to vote in fact did vote on the Agreement, and 16 employees approved the Agreement with clause 10 in the form proposed by the Employer.
From the materials filed there seems to be an ongoing disagreement between the Employer and the AMWU about whether all of the AMWU’s proposed changes should have been accepted and whether the annualised salary provisions, as voted on, are ambiguous. There is no disagreement about the intended operation of the annualised salary provisions, merely about the words used in clause 10 and whether those words reflect the common intention.
The Employer submits that “there is no ambiguity or disagreement regarding what is included as part of the annualised salary. Employees receive the annualised salary and the other benefits provided for under the Agreement (where applicable).”
I do not need to definitively resolve this apparent dispute because I am satisfied that the terms of the Agreement meet the statutory requirements.
There was also a disagreement between the Employer and the AMWU about the classification structure in the Agreement. There are three levels of Service Technician in the agreement, all of which are tradesperson classifications and almost every employee is engaged at the highest level of Service Technician. The Employer argues that the difference between the three levels “have no correlation to the Award. They are internal relativities based on BOC's requirements regarding skills and experience associated with BOC's systems. They do not relate to the competency structure in the Award.” The AMWU concedes that if all three levels are understood to equate to the C10 classification in the underpinning award, then “the Agreement will most likely pass the BOOT.”
The AMWU also says that its concern about classification structure “is only at issue because of the uncertainty that exists about which terms of the agreement apply in which circumstances”, which is a reference to the dispute about the alleged uncertainty regarding the annualised salary provisions, referred to above. I am not satisfied that the supposed ambiguity in relation to the annualised salary provisions calls into question the alignment between the three levels of Service Technician in the Agreement and the classification structure within the Award.
The AMWU was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the AMWU.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 November 2022. The nominal expiry date of the Agreement is 18 October 2024.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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Annexure A
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