BOC Limited

[2017] FWCA 4304

[2017] FWCA 4304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

BOC Limited
(AG2017/2453)

BOC LIMITED LUTATA (OPERATIONS) ENTERPRISE AGREEMENT 2017

Tasmania
DEPUTY PRESIDENT SAMS	SYDNEY, 17 AUGUST 2017

Application for approval of the BOC Limited Lutana (Operations) Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by BOC Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the BOC Limited Lutana (Operations) Enterprise Agreement 2017 (the ‘Agreement’). The Agreement was negotiated with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union – Tasmanian Branch (the ‘Union’) and covers nine employees who are located at the applicant’s facilities in Lutana, Tasmania. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 30 December 2016, and voting for the Agreement’s approval took place on 20 June 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all nine of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 26 June 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Ritter identified the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] (the ‘Award’) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Rittersaid the Agreement provided for a number of more beneficial terms when compared with the reference instrument, including higher rates of pay (of between 18-102%), enhanced redundancy provisions and annual bonuses linked to an incentive scheme. Ms Ritter said the Agreement provides for some terms which are less beneficial than the reference instrument, including no minimum engagement for part time employees, whereas the reference instrument requires a minimum of three hour engagement. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 3 and 4 respectively, and a disputes resolution procedure at clause 13 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 11 August 2017, Ms S Ritter appeared for the applicant. Ms Ritter outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. Ms Ritter advised that all the employees are on annualised salaries and this arrangement has been in place since 1996. There are no BOOT issues arising from these arrangements. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the BOC Limited Lutana (Operations) Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 18 August 2019 and have a nominal expiry date of 31 March 2020.

DEPUTY PRESIDENT

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