DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BOC Limited
(AG2019/1877)

BOC LIMITED (GAS & GEAR - VICTORIA) CERTIFIED AGREEMENT 2019

Retail industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 12 AUGUST 2019

Application for approval of an enterprise agreement – NUW objection concerning BOOT – Agreement’s hourly wages higher but no RDOs – significance of ‘intangible’ benefits – whether terms offend the NES – agreement approved

[1] BOC Limited has made an application pursuant to s 185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the BOC Limited (Gas & Gear - Victoria) Certified Agreement 2019 (the Agreement). The agreement is a single enterprise agreement.

[2] The company has provided written undertakings in response to a concern I raised about the application of penalty rates for casual employees working weekends and public holidays, and how this affects the question of whether the Agreement passes the ‘better off overall test’ measured against the General Retail Industry Award 2010 (Award). The undertakings address my concern. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that they will not result in substantial changes to the Agreement.

[3] The National Union of Workers (NUW) filed an F18 statutory declaration stating that it supported the approval of the Agreement. However, it subsequently advised the Commission that it considered that the Agreement does not pass the better off overall test in relation to prospective employees, on the basis that it does not allow them to accrue rostered days off (RDOs), unlike the Award.

Better off overall test

[4] The Agreement provides that employees employed prior to its commencement of operation will accrue 12 RDOs a year, or receive a higher rate of pay that ‘sells’ the RDOs (see Appendix A, tables 1 and 2). This mirrors the arrangements that apply to all employees under the current enterprise agreement. However, the Agreement provides that employees who become employed after the Agreement commences operation will not accrue RDOs or receive a higher rate of pay for ‘selling’ them (see Appendix A, table 3).

[5] In correspondence with the Commission the NUW initially stated that it was concerned that the rates of pay afforded to prospective employees under the Agreement were not high enough to result in them being better off overall as against the Award, because the Agreement rates were based on employees working 43 hours per week, and under the Award five of those hours would be paid at overtime rates. However the Commission’s calculations, which were provided to the company and the NUW, showed that the Agreement’s higher base rates of pay mean that prospective employees will in fact be better off financially under the Agreement than under the Award.

[6] The NUW then raised a further BOOT concern in relation to RDOs and prospective employees. It said that regardless of monetary considerations, prospective employees…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BOC Limited [2019] FWCA 5544
Case: [2019] FWCA 5544
Decision Date: 12 AUGUST 2019

CaseChat Overview and Summary

BOC Limited was the subject of an application for approval of an enterprise agreement. The National Union of Workers (NUW) objected to the agreement, arguing that it failed to meet the Better Off Overall Test (BOOT). The dispute was heard in the Fair Work Commission, presided over by Deputy President R J Smith. The union argued that while the proposed agreement offered higher hourly wages, it did not provide the same level of recreation days off (RDOs) as the previous agreement. The union contended that this reduction in RDOs, coupled with the higher wages, meant that employees were not better off overall. The union also raised concerns that the proposed agreement contained terms that offended the National Employment Standards (NES).

The Fair Work Commission was required to determine whether the proposed enterprise agreement met the BOOT, considering not only the financial benefits but also the 'intangible' benefits to employees. The Commission also had to assess whether any terms in the agreement contravened the NES. The union argued that the reduction in RDOs was a significant detriment that outweighed the higher wages. Conversely, BOC Limited submitted that the higher wages, along with other non-financial benefits, made employees better off overall. The Commission considered the overall package of benefits and detriments, including the financial and non-financial aspects, to determine if the agreement met the BOOT.

After considering the evidence and arguments presented by both parties, the Fair Work Commission found that the proposed enterprise agreement did meet the BOOT. The Commission determined that the higher hourly wages, coupled with other non-financial benefits, outweighed the reduction in RDOs. The Commission also found that the terms of the agreement did not contravene the NES. The Deputy President concluded that the proposed agreement was in the best interests of the employees and approved the agreement. The union's objection was dismissed.

Orders