DECISION

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

Brockfield Enterprises Pty Ltd and Ors
(AG2015/4222)

DEPUTY PRESIDENT ASBURY

BRISBANE, 17 NOVEMBER 2015

Application for approval of the Bos and Brockfield Enterprise Agreement 2012 –Agreement does not pass the better off overall test (BOOT) – Voluntary additional hours – Case law regarding principles of BOOT in considering proposed Agreements with voluntary additional hours clauses well settled – No submissions to warrant departure from settled principles - Application for approval refused.

BACKGROUND

[1] Brockfield Enterprises Pty Ltd, Bos Pty Ltd and Bos 2 Pty Ltd (the Applicants) apply in accordance with Part 2-4 of the Fair Work Act 2009 (the Act) for approval of the Bos and Brockfield Enterprise Agreement 2012 (the Agreement). The Applicants are represented by Mr Mossman of M+K Lawyers. On 23 September 2015, I caused correspondence to be forwarded to Mr Mossman raising a number of concerns I had with the Agreement and in particular whether it passed the better off overall test (BOOT) as set out in s. 193 of the Act. A response to those matters was provided by email from Mr Mossman on 24 September 2015.

[2] On 24 September 2015, I conducted a Hearing in relation to the application for approval of the Agreement, at which I elaborated further on my concerns about the Agreement. At that Hearing, I indicated that notwithstanding the emailed response on behalf of the Applicant, I continued to have concerns about whether the Agreement passes the BOOT and expressed a preliminary view that it did not appear that there were any exceptional circumstances so that approval of the Agreement could be sought under s. 189 of the Act. Mr Mossman of M+K Lawyers, on behalf of the Applicants, sought an adjournment to enable a written response to the issues I raised to be provided.

[3] On 29 September, Mr Mossman corresponded with the Commission providing a signed statement of Mr Brockfield, a Director of the Applicants, and proposing undertakings to address my concerns about whether the Agreement passed the BOOT. After considering the statement and the proposed undertakings, I caused further correspondence to be forwarded to Mr Mossman advising that I continued to hold the view that the Agreement did not pass the BOOT. The correspondence went on to request the Applicants to confirm whether they sought approval of the Agreement on the grounds set out in s. 189 of the Act in relation to exceptional circumstances.

[4] By email dated 14 October 2015, Mr Mossman advised that the Applicants would not be seeking approval of the Agreement pursuant to s. 189 of the Act and requested reasons for the Decision that the Agreement does not pass the BOOT notwithstanding the proposed undertakings. Those reasons are set out below.

ISSUES

[5] To provide context for my concerns with the Agreement, including whether it passes the BOOT, it is necessary to set out some of the terms of…

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

Case: [2015] FWC 7863
Decision Date: 17 NOVEMBER 2015

CaseChat Overview and Summary

In the case of Brockfield Enterprises Pty Ltd and Ors, the Fair Work Commission was asked to approve the Bos and Brockfield Enterprise Agreement 2012. The dispute centred around whether the proposed agreement satisfied the better off overall test (BOOT), particularly with regard to the voluntary additional hours clause. The court was tasked with determining if the agreement provided employees with sufficient benefits to deem it better overall, despite the additional hours.

The legal issues before the court included whether the proposed agreement met the BOOT requirement and if the voluntary additional hours clause was compatible with the principles established in previous cases. The court examined the principles for assessing BOOT in agreements with voluntary additional hours, which have been well established through case law. It considered whether any submissions made by the parties warranted a departure from these established principles.

The court found that the agreement did not meet the BOOT as employees were not better off overall considering the voluntary additional hours. The principles for assessing BOOT in such agreements were clear and well settled. No submissions were made that would justify deviating from these principles. Consequently, the application for approval of the agreement was refused.

Orders