Bona Management Group Pty. Ltd. T/A Macxsec
[2013] FWC 3372
•29 MAY 2013
[2013] FWC 3372 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Bona Management Group Pty. Ltd. T/A Macxsec
(AG2013/5860)
COMMISSIONER LEWIN | MELBOURNE, 29 MAY 2013 |
Application for approval of the Macxsec Enterprise Agreement 2013- application of better off overall test - averaging of all employee hours erroneous- each employee must be better off overall- application refused.
Introduction
[1] An application has been made for approval of an Enterprise Agreement known as the Macxsec Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bona Management Group Pty Ltd T/A Macxsec (Macxsec). The Agreement is a single Enterprise Agreement.
[2] The application for approval of the Agreement was filed by Mr Robert Graham of Worksite Resolutions a Representative of Mr Puneet Chaudrey a Manager of Maxcsec on 2 April 2013.
[3] The relevant statutory provisions 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 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).
[1] On reading the terms of the Agreement I became concerned that the terms of the Agreement might not meet the better off overall test (the Test) prescribed by s.190 of the Act as required by s.186(2)(d) of the Act. I advised the Applicant of those concerns. The relevant statutory provisions are:
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.
When a greenfields agreement passes the better off overall test
(3) A greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that 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.
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 employee for 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) The test time is the time the application for approval of the agreement by the FWC was made under 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.
Better off Overall?
[2] The Agreement covers employees in the Security Industry. The relevant Modern Award for the purposes of the test is the Security Services Industry Award 2010 [MA000016] (the Award).
[3] I am not satisfied that the Agreement passes the test.
[4] It will be observed that for an Enterprise Agreement to pass the test each employee whose employment will be covered by the Agreement must be better off than if covered under the terms of the Award.
[5] Since the filing of the Application there has been extensive correspondence with the Applicant’s Representative concerning the test and its application to the terms of the Agreement.
[6] The Applicant was invited to make submissions in relation to the test and to offer Undertakings pursuant to s190 of the Act. Some Undertakings have been offered. In my view, those Undertakings read as terms of the Agreement, together with the Agreement, do not cause the Agreement to pass the test.
[7] On the contrary, testing of the Agreement having regard to Clause 12 leads to identification of significant deficits in the payment which would be made to employees who would be covered by the Agreement for hours of work which may be required pursuant to the terms of the Agreement.
[8] As will be seen below, the Agreement does not provide for a fixed number of ordinary hours. Nor does the Agreement provide for a span of hours or any restriction on the working of hours on any day of week.
[9] Therefore, the hours of work can be performed on any day of the week at any time and are limited only by various terms of the Clause 12 of the Agreement as follows:
Clause 12. HOURS OF WORK
The "employer" in accordance with Part 2-2 - Section 62 - Maximum Weekly Hours - of the Fair Work Act 2009 (Cth), will develop flexible working arrangements, subject to the needs and requirements of the Enterprise the "employees" will be rostered to work the following hours of work:
(a) Full time "employees" will be required to work a total of 38 hours plus reasonable additional hours in any weekly cycle. No full time "employee" will be required to work less than 4 hours or more than 12 hours on any given day. "Employees" will be entitled to 2 rostered days off per weekly cycle. Due to operational requirements, the "employee" may be required to work additional hours, however such requests may be refused by the "employee" due to pressing and personal circumstances, which prevent their availability.
(b) Permanent Part-time "employees" will be guaranteed that each shift will consist of not less than 4 hours and not more than 13 hours in duration. Permanent part-time "employees will be entitled to the provisions of this Agreement on a pro rata basis, including 2 rostered days off per weekly cycle.
(c) In accordance with this Clause, the Enterprise will develop variable rosters covering all hours in which the Enterprise operates. Such rosters will be arranged on a weekly basis, and will be confirmed by the "employee" contacting the "employer" or as advised by the Operations Manager.
(d) If due to extenuating circumstances the "employer" requires an "employee" to work in excess of 7 days in succession, subject to mutual consent between the parties, the "employees" roster may be altered provided the shift worked does not increase the number of days worked to in excess of 10 days in succession.
(e) If the "employer" requires an "employee" to work on their rostered day off, provided the "employee" will not have worked 10 days in succession and the "employee" agrees to such a request, the "employer" will pay the "employee" ordinary time for all time worked and another day off in lieu without loss of wages. A shift swap with another "employee" or any additional shift worked at the "employees" request, will not be regulated by the provisions of this clause.
(f) Casual "employees" will be engaged by the "employer" on a needs basis.
Casual "employees" will be entitled to the same terms and conditions of employment under this Agreement, except for Clauses 12.2, 13 and 14 of this Agreement.
(g) Independent Contractors may be engaged by the "employer" under a contract of service, to supplement the workforce on a needs basis.
(h) Voluntary Additional Hours, are hours worked outside of an "employee's" ordinary span of hours, and are requested by the "employee" on a needs basis. An "employee" who elects to work such additional hours, does so voluntarily and is required to complete the relevant form. By signing the form, the "employee" accepts they are requesting to work such additional hours, which are paid at the "employee's" ordinary hourly rate. However the "employee" may refuse to work reasonable additional hours requested by the "employer", should pressing and personal circumstances prevent their availability.
12.1 MEAL BREAK & REST BREAKS
(a) Subject to the operational requirements of the business, every
"employee" shall be entitled to an unpaid meal break of not less than
30 minutes to be taken after the completion of not less than five hours of duty. Where possible the "employer" will arrange for the "employee" to be covered, so the break may be taken during the rostered shift.
(b) Where an "employee" is required to work in excess of five hours after the first meal interval which they were granted, a further meal interval of 20 minutes to be treated as a paid meal break shall be granted to the "employee".
(c) Where it is impractical for an "employee" to take an unpaid meal break, the "employer" will arrange for the "employee" to take such time as a paid meal break, while they are performing such duties.
12.2 OVERTIME
(a) Where a relevant "employee" has established their rostered hours of work with the "employer" in accordance with Clause 12 of this Agreement, and the "employer" has authorised the "employee" to work beyond the completion of their rostered shift, then the "employee" will be entitled to be paid overtime for all time worked continuous with the completion of their rostered shift.
(b) Overtime shall be calculated at the rate of ordinary time plus 50% for the first two hours and 100% for all time worked thereafter according to the "employees" Skill and Salary Classification level. Where overtime has been worked during a rostered cycle, for the purposes of calculation, a rostered cycle shall commence upon the "employees" initial engagement.
(c) A record of all time worked will be kept by the "employer" in accordance with Industrial Regulations - Part 3-6, Division 3 - Employee Records - of the Fair Work Act 2009 (Cth). Such records will be available at all times for inspection by officers of the Fair Work Ombudsman.
[10] It is clear in Clause 12(b) that full time employees can be required to work at least seven days of 12 hours without payment of overtime and up to ten days in succession.
[11] There is provision for an unlimited number of Voluntary Additional Hours in Clause 12 (h) of the Agreement.
Applicant’s Submissions and Examples
[12] In support of approval of the Agreement the Applicant sought to rely upon a calculation of hours and payments said to apply under the terms of the Agreement which was set out in various tables.
[13] The first such table, which formed the basis of subsequent tabular representation of the operation of the terms of the Agreement for the purposes of the Applicants submission, is as follows:
The employer would say all their calculations have been based upon an average week with a total of 305 rostered hours per weekly roster cycle, and are itemised as follows:
Weekly average hours 130.00 - 42.62%
Weekday 6pm/6am hours 150.00 - 49.18%
Saturday average hours *15.00 - *4.92%
Sunday average hours *10.00 - *3.28%
Total Average Hours 305.00 - 100.00%
[14] In will be observed that these figures are based on a concept referred to as “rostered hours per weekly roster cycle” and “Total Average Hours of 305.00 per week”.
[15] Clearly this is not intended to represent the average weekly hours over a comparable period of averaging of ordinary hours of work provided for by the Award of each employee whose employment will be covered by the terms of the Agreement.
[16] I was required to deal with a submission of a similar kind in the matter of National Protection Group T/A NPG Australia 1.
[17] In my view, the proper approach to this concept of “Total Average Hours” is that it does not form a basis for the application of the test to the terms of the Agreement.
[18] The Applicant offered the following tables which show that employees would not be better off overall under the terms of the Agreement according to rosters calculated by an abstract methodology set out above, and submitted that notwithstanding what the Applicant referred to as any “reduction” of benefits to employees shown therein this would be remedied if a hypothetical employee were to be rostered off on one weekend in two over a two week cycle and that such an employee would be better off under the terms of the Agreement.
[19] The Applicant’s analysis and the examples are set out for convenience of understanding:
Full Time Examples
● Example A - Level 1 Full-time hours based on average weekly roster cycle.
Agreement Ordinary Rate | $20.30 | Award Ordinary Rate | $17.93 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
ordinary base rate | [42.62%] | 0% | $328.65 | ordinary base rate | [42.62%] | 100% | $290.28 |
Shift 6pm/6am | [49.18%] | 0% | $379.40 | Shift 6pm/6am | [49.18%] | 121.7% | $407.83 |
Saturday | [*4.92%] | 0% | $*37.96 | Saturday | [*4.92%] | 150% | $*50.29 |
Sunday | [*3.28%] | 0% | $*25.38 | Sunday | [*3.28%] | 200% | $*44.82 |
Allowances | Amount | Value | Allowances | Amount | Value | ||
Leave Loading | No | $**0.00 | Leave Loading | Yes | $**9.17 | ||
Total | $771.39 | Total | $802.39 | ||||
Award Total weekly rate | $802.39 | ||||||
Agreement Total weekly rate | $771.39 | ||||||
Percentage Difference | -3.86% | ||||||
● Example B - Level 1 Part-time hours based on average weekly roster cycle.
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● Example C - Level 1 Casual hours based on average weekly roster cycle.
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● Example D - Level 1 Causal hours based on an average weekly roster cycle.
Agreement Ordinary Rate | $24.45 | Award Ordinary Rate | $17.93 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
ordinary base rate | [42.62%] | 0% | $395.84 | ordinary base rate | [42.62%] | 25% | $362.85 |
Shift 6pm/6am | [49.18%] | 0% | $456.97 | Shift 6pm/6am | [49.18%] | 46.7% | $491.60 |
Saturday | [*4.92%] | 0% | $*45.72 | Saturday | [*4.92%] | 75% | $*58.67 |
Sunday | [*3.28%] | 0% | $*30.56 | Sunday | [*3.28%] | 125% | $*50.42 |
Total | $929.09 | Total | $963.54 | ||||
Award Total weekly rate | $963.54 | ||||||
Agreement Total weekly rate | $929.09 | ||||||
Percentage Difference | -3.57% | ||||||
Consideration
[20] In my judgement, this analysis is fundamentally unsound as a proper approach to the application of the better off overall test and cannot be relied upon. Moreover, even on its own erroneous foundations it is at the very least unconvincing. On my construction of the terms of the Agreement a proper interpretation of the submission would require an analysis of what the position of an employee would be if the employee’s hours were averaged over a two week period in which two rostered days off were a Saturday and a Sunday. However, there is nothing in the Agreement or the Undertakings which would ensure such arrangements were always a part of an employee’s roster and would only apply where an employee was required to perform work for more than seven consecutive days.
[21] The deficiency in this submission can be illustrated by an example where an employee’s two rostered days off in a fortnight fall on days between Monday and Friday.
[22] It will be noted that this analysis excludes weekend work which would be permitted under the terms of the Agreement.
[23] An analysis which provides for a Level 1 employee working every second weekend, Saturday and Sunday, over a two week period (76 hours) is set out below:
Agreement Ordinary Rate | $20.30 | Award Ordinary Rate | $17.76 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Ordinary hours | 76 | 100% | $1,542.80 | Ordinary Time | 60.8 | 100% | $1,079.81 |
$0.00 | Ordinary hours Saturday | 7.6 | 150% | $202.46 | |||
$0.00 | Ordinary hours Sunday | 7.6 | 200% | $269.95 | |||
Total hours | 76 | $0.00 | Total hours | 76 | $0.00 | ||
Allowances | Amount | Value | Allowances | Amount | Value | ||
Leave Loading | No | $0.00 | Leave Loading | Yes | $9.08 | ||
Total | $1,542.80 | Total | $1,561.31 | ||||
Award Total over a period of two weeks | $1,561.31 | ||||||
Agreement Total over a period of two weeks | $1,542.80 | ||||||
Percentage Difference | -1.20% | ||||||
[24] The analysis can be undertaken for an employee working night shift on the same roster and further demonstrates the inability of the Agreement to pass the test.
Agreement Ordinary Rate | $20.30 | Award Ordinary Rate | $17.76 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Night Shift | 76 | 100% | $1,542.80 | Night Shift | 60.8 | 122% | $1,314.13 |
$0.00 | Ordinary hours Saturday | 7.6 | 150% | $202.46 | |||
$0.00 | Ordinary hours Sunday | 7.6 | 200% | $269.95 | |||
Total hours | 76 | $0.00 | Total hours | 76 | $0.00 | ||
Allowances | Amount | Value | Allowances | Amount | Value | ||
Leave Loading | No | $0.00 | Leave Loading | Yes | $9.08 | ||
Total | $1,542.80 | Total | $1,795.63 | ||||
Award Total over a period of two weeks | $1,795.63 | ||||||
Agreement Total over a period of two weeks | $1,542.80 | ||||||
Percentage Difference | -16.39% | ||||||
[25] It is also appropriate to give consideration to the operation of the Agreement in relation to part time employees. To do so it is first informative to set out the relevant provisions of the Award.
10.4 Part-time employees
(a) A part-time employee is an employee who is employed in a classification in Schedule C- Classifications and who:
(i) is engaged to work fewer than 38 ordinary hours per week or, where the employer operates a roster, an average of fewer than 38 hours per week over the roster cycle; and
(ii) has reasonably predictable hours of work; and
(iii) receives, on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.
(b) At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work either:
(i) specifying at least the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day; or
(ii) specifying the roster that the employee will work (including the actual starting and finishing times for each shift) together with days or parts of days on which the employee will not be rostered.
(c) Any agreed variation to the hours of work will be recorded in writing.
(d) All time worked in excess of the hours as agreed under clause 10.4(b) or varied under clause 10.4(c) will be overtime and paid for at the rates prescribed in clause 23. Overtime.
(e) An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be employed as a casual employee.
(f) A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed.
[1] It will be noted that there is little by way of equivalence between the terms of the Award and the Agreement, even considering the Applicant’s proposed Undertakings.
[2] The term of the Agreement in relation to the hours of work of part time employees are shown in Clause 12(b) of the Agreement.
[3] A part time employee can be engaged to work 13 hours per day for three days per week on night shift. An analysis of the effect of the terms of the Agreement when compared with the terms of the Award in such circumstances is set out below:
Agreement Ordinary Rate | $20.30 | Award Ordinary Rate | $17.76 | |||||
Hours | Loading | weekly total | Hours | Loading | weekly total | |||
Ordinary Time | 39 | 100% | $791.70 | Ordinary Time | 36 | 121.7% | $778.10 | |
$0.00 | Saturday | 3 | 150% | $79.92 | ||||
$0.00 | Sunday | 200% | $0.00 | |||||
Allowances | Amount | Value | Allowances | Amount | Value | |||
Leave Loading | No | $0.00 | Leave Loading | Yes | $9.32 | |||
Total | $791.70 | Total | $867.35 | |||||
Award Total Weekly Rate | $867.35 | |||||||
Agreement Total Weekly Rate | $791.70 | |||||||
Percentage Difference | -9.55% | |||||||
[4] On my consideration, these examples are but a fraction of an infinite range of variable circumstances under the terms of the Agreement where employees would not be better off overall if employed under the terms of the Agreement than if employed under the terms of the Award. When advising the Applicant of my concerns in relation to the Agreement passing the test, I provided a number of examples of circumstances where the Agreement does not pass the test which are appended to this Decision. 2 The Undertakings do not remedy these instances.
[5] The single loaded rate provided for by the Agreement combined with its provisions governing the hours of work of employees, the Voluntary Additional Hours provisions, modified by a proposed Undertaking, the relationship between the “Overtime” and Other Hours of Work provisions operate to cause the Agreement to provide that employees may be rostered to work in numerous configurations of hours on any day of the week which will lead to the remuneration of the employee for the work performed by them to be less than would apply if the work had been performed under the Award.
[6] It is unnecessary to provide more extensive analysis of the operation of the terms of the Agreement together with the proposed Undertakings when considered against the test.
[7] It may usefully be observed that the terms of the Agreement exclude casual employees from its Overtime provisions. 3 The Award relevantly provides as follows in:
23. Overtime
23.1 Reasonable overtime is provided for in the NES.
23.2 An employee must not be required to work more than 14 hours (including breaks to which the employee is entitled under this award).
23.3 Overtime rates
Where an employee works overtime the employer must pay to the employee the ordinary time rate for the period of overtime together with a loading as follows:
For overtime worked on | Loading payable in addition to ordinary time rate % |
Monday to Friday—first 2 hours | 50 |
Monday to Friday—thereafter | 100 |
Saturday—first 2 hours | 50 |
Saturday—thereafter | 100 |
Sunday | 100 |
Public holiday | 150 |
23.4 Where a period of overtime commences on one day and continues into the following day, the portion of the period worked on each day attracts the loading applicable to that day.
23.5 Minimum break following overtime
An employee should have a break off duty of at least eight hours between:
the conclusion of a shift or, if the employee worked overtime following the end of the shift, at the conclusion of such overtime; and
the commencement of work on the next shift or, if there is any pre-shift overtime before the commencement of the next shift, the commencement of that pre-shift overtime.
Where an employee has not had at least eight hours off duty between those times, the employee must, subject to this subclause, be released after completion of such overtime until the employee has eight hours off duty without loss of pay for ordinary time occurring during such absence. If on the instructions of the employer such an employee resumes or continues work without having had such period off duty the employee must be paid at 200% ordinary time until released from duty for such period and such employee is then entitled to be absent until the employee has had such period off duty without loss of pay for ordinary working time occurring during such absence.
[8] Casual employees it will be noted may be employed under the terms of the Agreement and are excluded from the provisions of Clause 12.2 of the Agreement by the terms of Clause 12(f) of the Agreement. No such overtime exclusion operates under the terms of the Award.
[9] A straight forward example of a casual employee who would be worse off under the terms of the Agreement is a causal employee working 3 x 8 hour shifts starting at 6pm on Thursday, Friday and Saturday.
Agreement Ordinary Rate | $24.45 | Award Ordinary Rate | $17.76 | |||||
Hours | Loading | weekly total | Hours | Loading | weekly total | |||
Ordinary Time | 24 | 100% | $586.80 | |||||
$0.00 | Night shift | 16 | 146% | $414.96 | ||||
$0.00 | Saturday | 8 | 174% | $247.69 | ||||
Total | $586.80 | Total | $662.65 | |||||
Award Total Weekly Rate | $662.65 | |||||||
Agreement Total Weekly Rate | $586.80 | |||||||
Percentage Difference | -12.93% | |||||||
[10] In addition to the Applicant’s undertakings and submission, examples and analysis of the terms of the Agreement and how those terms would operate upon payment for the performance of hours of work by employees whose employment would be covered by the Agreement, the Applicant relied upon comparisons with the terms of other Agreements approved by the Commission.
[11] In my view, this approach is misconceived. It is the Agreement, together with the Undertakings, which must pass the test. Either the terms of the Agreement pass the test or they do not.
[12] The Applicant did not explicitly refer to the approval of the Agreement on the grounds provided for by s.189 of the Act. In any event, even if the submissions of the Applicant concerning the comparison of the terms of the Agreement with the terms of other Agreements approved by the Commission were considered accordingly, I would not be satisfied that the relevant conditions precedent to the power to approve the Agreement prescribed by s.189(2)(c) exist.
[13] For all of these reasons the Agreement cannot be approved. An Order dismissing the application for approval will be issued.
COMMISSIONER
1 [2010] FWA 9351.
2 Appendix A.
3 Clause 12(f) proposed Macxsec Enterprise Agreement 2013.
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