Cater Care Services Pty Ltd
[2020] FWC 3167
•22 JUNE 2020
| [2020] FWC 3167 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Cater Care Services Pty Ltd
(AG2020/535)
COMMISSIONER LEE | MELBOURNE, 22 JUNE 2020 |
Application for approval of the Cater Care Services Agreement 2020-2024.
[1] An application has been made for approval of an enterprise agreement known as the Cater Care Services Agreement 2020-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cater Care Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
[2] The Australian Workers Union (AWU) is a bargaining representative for the Agreement. They supplied a Form F18 - Declaration of an employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfeilds agreement) (Form F18) indicating that they seek to be covered by the Agreement but that they did not support approval of the Agreement. The AWU stated in the Form F18:
“The AWU raised in bargaining and continues to have concerns that the proposed agreement may not meet the BOOT test.
Namely, the AWU does NOT believe the operational allowance and the mine site cleaners allowance adequately compensate employees for the allowances that would normally be payable under the Award in regard to:
• Where employees are rostered to work more than 10 hours per day for more than three consecutive days without a 48-hour break.
• Where employees are rostered for more than eight days of greater than 10 hours, worked in a four-week period.
• The annualised salaries for all employees does not properly consider the required 25% casual loading for casual employees.” 1
[3] In reviewing the Agreement for approval, my Chambers wrote to the Applicant identifying numerous concerns in relation to the Agreement and supporting documentation. These concerns included the following:
Section 180(3) and 180(5) concerns:
[4] It did not appear the Employer notified employees of the voting information by the start of the access period as required by s.180(3) of the Act.
[5] There was insufficient information to be satisfied that all reasonable steps had been taken to explain the agreement as required by s.180(5) of the Act.
Shiftworker definition and flexibility term concerns:
[6] The shiftworker definition in the Agreement did not apply for the purposes of the National Employment Standards.
[7] The flexibility term in the Agreement did not comply with s.203 of the Act.
[8] The Applicant provided further submissions which satisfied my concerns as to these matters and an undertaking was provided which satisfied concerns regarding the shiftworker definition. It was noted and accepted by the Applicant that the model flexibility term would apply and be inserted into the Agreement should it be approved.
Better Off Overall Test (BOOT) concerns:
[9] The relevant Award for the application of the BOOT at test time is the Hospitality Industry (General) Award 2010 (the Award), The rates of pay in the Agreement are equal to the relevant Award. There are more some more beneficial provisions in the Agreement. These are:
“• Existing permanent full time and part time employees under the agreement at the time the Agreement is approved by the Fair Work Commission will be paid a Sunday loading of 75% and public holiday loading of 150%. Clause 32.1 of the Award provides for a Sunday loading of 50% and public holiday loading of 125%.
• Existing casual employees under the Agreement at the time the Agreement is approved by the Fair Work Commission will be paid a public holiday loading of 175%. Clause 32.1 of the Award provides for a 150% public holiday loading.
• The Agreement makes no deduction for meals and accommodation. The employer provides accommodation and meals to all employees free of charge. Clause 39 of the Award allows employers to make deductions for accommodation and meals.
• An additional paid day of compassionate leave will be provided for travel off site to an employee classified as a Distant Worker following the notification of the death or life threatening illness/injury of the employee’s immediate family or household. Clause 35 of the Award does not include this additional provision for compassionate leave.” 2
[10] The other more beneficial terms cited in the Applicant’s Form F17 are the Operational Allowance and the Mine Site Cleaners Operational Allowance The clauses that provide for these allowances are in the following terms:
“4.8. OPERATIONAL ALLOWANCE
4.8.1. The Company will pay each Employee an Operational Allowance. The amount of the Operational Allowance is at the Company's discretion and, provided the guarantee in clause 4.8.4 of this Agreement is satisfied, may compensate employees for:
(a) The roster and location of a particular site;
(b)loadings otherwise payable under this Agreement (including, but not limited to, annual leave loading);
(c) allowances otherwise payable under this Agreement (including, but not limited to, tool allowances, first aid allowances, laundry allowances, broken shift allowances);
(d) penalties otherwise payable under this Agreement (including, but not limited to, penalties for late night or early morning work).
4.8.2. Prior to paying an Employee an Operational Allowance, the Company will tell the Employee precisely which (if any) loadings, allowances and penalties that the Operational Allowance compensates employees for.
4.8.3.The Operational Allowance will vary between different Sites and this allowance may be varied at the Company's discretion.
4.8.4. The Company guarantees that Employees covered by this Agreement will receive at least 1% more remuneration (inclusive of the Operational Allowance) than what they would have received under the terms of the Hospitality Industry (General) Award 2010.
4.8.5 Mine Site Cleaner Operational Allowance
An employee performing the role of Mine Site Cleaner will receive an additional Mine Site Cleaner Operational Allowance of at least a minimum $0.25 per hour. For the avoidance of doubt the $0.25 per hour is in addition to the Operational Allowance calculated to ensure an employee earns at least 1% more remuneration than the Hospitality Industry (General) Award 201O described at clause 4.8.1. However, if an employee performing the role of Mine Site Cleaner is already receiving an Operational Allowance that is greater than 1% more remuneration than the Hospitality Industry (General) Award 201O and $0.25 per hour, it is at the employer's discretion whether to increase the total allowances to be higher than $0.25 per hour and 1% more remuneration than the Hospitality Industry General Award 2010.” 3
[11] While these clauses were said to be more beneficial, I raised a BOOT concern in respect to the Operational Allowance. In particular I was concerned that the fact that the amount of the Operational Allowance was at the Company’s discretion and the guarantee that employees will receive at least 1% more remuneration than the Award, does not appear to be consistent with the decision in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery 4. Furthermore, remuneration that is only 1% higher than the Award does not appear to compensate employees for annual leave loading, allowances, late night or early morning work and other penalties.
[12] There are also a number of less beneficial terms in the Agreement. I note, that unlike the more beneficial terms that were listed in the Form F17, the Applicant does not mention at all these less beneficial terms in the Form F17. The less beneficial terms include:
• Hours of work: Clause 3.1 of the Agreement provides ordinary hours can be averaged over a period of one year or over defined consecutively recurring work cycles followed by consecutive non-working days not exceeding one year. Clause 29.1 of the Award does not appear to provide hours can be averaged over one year but may be averaged over a four week period.
• No limit on rostering more than 10 hours per day: The Agreement does not provide that employees may not be rostered more than 10 hours per day for more than three consecutive days without a 48-hour break following and no more than eight days of more than 10 hours may be worked in a four-week period, as per clause 29.1 of the Award.
• Annual leave loading and operational allowance: Clause 5 of the Agreement appears to indicate that some employees may not be paid an operational allowance if they are in receipt of annual leave loading. Therefore, it is unclear how these employees would be better off overall when receiving rates of pay and entitlements provided by the agreement which are equal to the Award.
• Working late/early travel costs: The Agreement does not appear to provide reimbursement for the cost of transport for employees working late or working early, as per clauses 21.1(f) and 21.1(g) of the Award.
• Excessive annual leave accruals: Clause 5.1.2 of the Agreement does not provide excessive annual leave safeguards as provided for at clause 34.7 of the Award which states that excessive annual leave is triggered at eight weeks for day workers and 10 weeks for shiftworkers.
• Higher duties: The Agreement does appear to provide payment for higher duties, as provided for at clause 25 of the Award.
• Annualised salaries: Clause 4.5 of the Agreement provides for annualised wages as an alternative to being paid on an hourly basis. The clause provides the Company guarantees that an employee who receives an annualised wage will receive at least what they would receive under a non-annualised wage arrangement pursuant to the Agreement for working the same hours. This does not align with clause 27.1 of the Award, which provides the employer may pay the employee at a rate equivalent to an annual salary of at least 25% or more above the minimum rates in the Award times 52 for the work being performed. Under the Award an agreement to an annualised salary will have regard to the pattern of work in the employee’s occupation, industry or enterprise but must not disadvantage the employee’s involved. Furthermore clause 27.1(b) of the Award provides that the annualised salary arrangement will be sufficient to cover what the employee would have been entitled to if all Award overtime and penalty rate payment obligations had been complied with.
[13] In response to the BOOT concerns raised, the Applicant provided the following submissions and undertakings:
• Hours of work: Submissions were provided that the intention of Clause 3.1 of the Agreement is to be comparable to clause 29.3 of the Award - Catering in remote locations as our workplaces are in remote locations. I have considered the submission and I am satisfied that the submission resolves my concern on that matter.
• No limit on rostering more than 10 hours per day: Undertaking provided that clause 3.1 of the Agreement applies for the purposes of clause 29.1 of the Award. This undertaking satisfies that concern.
• Annualised salary: Undertaking provided to remove clause 4.5 of the Agreement. The undertaking provided satisfies the concern.
• Excessive annual leave: Undertaking provided that replicates the provisions at clause 34.7 of the Award, which satisfies that concern.
• Higher duties: Undertaking provided to incorporate the definition at clause 25 of the Award, which satisfies that concern.
[14] However, the responses to other matters raised did not satisfy my concerns as follows:
• Working late/working early: The Applicant agreed to provide an undertaking in relation to this concern, however this was not provided.
[15] There was also the issue of the annual leave loading and its link with the Operational Allowance. The response was that:
“Annual leave loading is included in the Operational Allowance calculation. If an employee was not in receipt of an Operational Allowance they would be paid annual leave loading. However, employees would need to be paid remuneration that was greater than 1% of the Hospitality Industry (General) Award 2010 which would include taking into account the dollar value of 1% extra of 17.5% annual leave loading.” 5
[16] However, the Applicant has failed to deal with the concern that by virtue of clause 5.1.5 of the Agreement there is a method to avoid payment of the Operational Allowance in circumstances where an employee expressly receives annual leave loading. It also needs to be borne in mind that it is not known what the quantum of the Operational Allowance is, making this provision of greater concern.
[17] This brings me to the Operational Allowance itself. The response to the concerns raised regarding the Operational Allowance did not resolve my BOOT concern. The response provided was:
“The Operational Allowance paid will cover annual leave loading, any allowances applicable to the employee's roster and any penalties applicable to the employee's roster including late night or early morning work penalties in addition to the 1% dollar value guarantee to be paid 1% above what an employee's roster would earn under the Hospitality Industry (General) Award 2010. Please see Attachment 3 - BOOT Test calculations to demonstrate the remuneration is greater under the Agreement compared with the Award.” 6
[18] Attachment 3 of the Applicant’s response included modelling of rosters comparing the Agreement rates inclusive of the Operational Allowance with the rate and penalties as found in the Award. The response and attachment did not resolve my concerns for reasons which are set out below
[19] To assist the Applicant in providing information directed at my concerns I set out a number of questions that I asked the Applicant to respond to. The questions and responses were as follows:
“1. How employees will be better off overall under the Agreement when compared to the Award in relation to the operational allowance arrangement?
Cater Care response:
In the following we provide a break down of a Level 2 adult employee in the classification of Utility working a shift of 6.00pm-4.30am with a half hour unpaid break and paid rest break for a 2 weeks on and 1 week off roster. Our calculations for this roster under the Hospitality Industry (General) Award 2010 compared with the calculations for the same roster under the Cater Care Services Agreement 2020-2024 demonstrate an employee is better off overall under the Cater Care Services Agreement 2020-2024.
In accordance with clause 29.3 (b) and (c)
(b) The total ordinary hours of work during a cycle will not exceed 40 hours multiplied by the number of working and non-working weeks in the cycle.
(c) Overtime rates will be paid for any time in excess of eight hours per day or in excess of the total ordinary hours prescribed in clause 29.3(a)
The hours worked in the cycle of 2 weeks on and 1 week off are allocated (as per the below table) to payment categories of normal hours, overtime and weekend penalty rates.
2 Weeks on and 1 Week Off Roster
Total Hrs Worked | Ordinary Time | Sat 25% | Sun 50% | Time and One Half | Double Time | |
Monday | 10 | 8 | 2 | |||
Tuesday | 10 | 8 | 2 | |||
Wednesday | 10 | 8 | 2 | |||
Thursday | 10 | 8 | 2 | |||
Friday | 10 | 8 | 2 | |||
Saturday | 10 | 8 | 2 | |||
Sunday | 10 | 8 | 2 | |||
Monday | 10 | 8 | 2 | |||
Tuesday | 10 | 8 | 2 | |||
Wednesday | 10 | 8 | 2 | |||
Thursday | 10 | 8 | 2 | |||
Friday | 10 | 8 | 2 | |||
Saturday | 10 | 8 | 2 | |||
Sunday | 10 | 8 | 2 | |||
Monday | OFF | |||||
Tuesday | OFF | |||||
Wednesday | OFF | |||||
Thursday | OFF | |||||
Friday | OFF | |||||
Saturday | OFF | |||||
Sunday | OFF | |||||
TOTALS | 140 | 80 | 16 | 16 | 20 | 8 |
2 weeks on and 1 week off = 3 weeks cycle, 52 weeks divided by 3 weeks = 17.33 cycles per annum
• The 2 weeks on and 1 week off roster cycle is then paid as follows for a Level 2 adult employee working 6.00pmto 4.30pm under the Hospitality Industry (General) Award 2010.
• 80 hours x $20.82 (Ordinary hours worked on Monday to Friday in the cycle) = $1,665.60.
• 16 hours x $20.82 + 25% Saturday penalty (Ordinary Saturday hours worked in the cycle) = $416.40
• 16 hours x 20.82 + 50% Sunday penalty (Ordinary Sunday hours worked in the cycle) = $499.68
• 20 hours x $20.82 x time and one half (Overtime worked during Monday to Friday in the cycle) = $624.60
• 8 hours x $20.82 x double time (Overtime worked on Saturday & Sunday in the cycle) =$333.12
• Shift penalty that would apply during the cycle on ordinary hours worked between 7pm to 12am is 4.5 hours x $2.27 x 10 shifts = $102.15
• Shift penalty that would apply during the cycle on ordinary hours worked between 12am-2.30am is 2.5 hours x $3.41 x 10 shifts = $85.25 (The reason the penalty cuts off at 2.30am is because hours worked after 2.30am are classed as overtime and the penalty is not payable with overtime hours).
• 2 weeks laundry allowance = $12.00
• In accordance with clause 39 - Provision of employee accommodation and meals, a deduction is made for an adult provided with a single room and 3 meals per day of $215.63 per week. In accordance with the 2 weeks on and 1 week off roster a deduction of -$431.26 would be processed for the cycle ($215.63 x 2 weeks = $431.26).
Total wages earned under the Hospitality Industry (General) Award 2010 for a Level 2 adult working a 2 weeks on and 1 week off roster with a 6.00pm-4.30am shift is: $3,307.54.
Under the Cater Care Services Agreement 2020-2024 the payments would be processed as follows:
• 80 hours x $20.82 (Ordinary hours worked on Monday to Friday in the cycle) = $1,665.60
• 16 hours x $20.82 + 25% Saturday penalty (Ordinary Saturday hours worked in the cycle) = $416.40
• 16 hours x 20.82 + 50% Sunday penalty (Ordinary Sunday hours worked in the cycle) = $499.68
• 20 hours x $20.82 x time and one half (Overtime worked during Monday to Friday in the cycle) = $624.60
• 8 hours x $20.82 x double time (Overtime worked on Saturday & Sunday in the cycle) = $333.12
• 140 hours x $1.92 Operational allowance = $268.80.
Total earned under the Cater Care Services Agreement for a Level 2 adult working a 2 weeks on and 1 week off roster with a 6pm-4.30am shift is: $3,808.20.
Cater Care do not deduct for meals and accommodation provided.
Difference between Hospitality Industry (General) Award 2010 and Cater Care Services Agreement 2020-2024 is as follows:
- Under the Cater Care Services Agreement 2020-2024, the adult employee receives per cycle $500.66 more than if they were remunerated under the Award. This exceeds the guarantee to earn 1% above the relevant Award which would only be $33.08 per cycle.
The Operational Allowance has been calculated as per the following:
Shift penalties that apply for the roster under the award is $187.40 plus (1% guarantee to earn greater than award) $1.87 = $189.27 divided by total hours worked in the cycle (140 hours) = $1.35
Total payment for all hours worked in the cycle including ordinary hours, penalty rates and overtime = $3,539.40 plus (1% guarantee to earn greater than award) $35.39 = $3,574.79. $35.39 divided by total hours worked in the cycle (140 hours) = $0.25
The following calculation highlighted in red is always included in the operational allowance paid regardless of the shifts worked.
A Level 2 adult employee would earn four weeks x 38 hours annual leave per annum - 152 hours x $20.82 = $3,164.64 + 17.5% loading ($553.81) = $3,718.45 plus (1% guarantee to earn greater than award) $37.18 = $3,755.63.
Leave Loading (553.81) x 1% ($5.54) = $559.35. $559.35 divided by 17.33cycles(2 weeks on and 1 week off cycle) per annum divided by total hours worked per cycle (140 hours) = $0.23
Annual leave per annum ($3,164.64) x 1% = $31.65 divided by 17.33 cycles per annum divided by total hours worked per cycle (140 hours) = $0.01
Laundry Allowance that would apply for the roster under the award is $12.00 plus (1% guarantee to earn greater than award) $0.12 = $12.12 divided by 3 weeks per cycle $4.04 x 48 weeks per annum = $193.92 per annum divided by 17.33 cycles divided by total hours worked per cycle (140 hours) = $0.08
• Operational Allowance = $1.35 + $0.25 + $0.23 + $0.01 + $0.08 = $1.92 per hour for the above cycle of 2 weeks on and 1 week off for a Level 2 adult working 6pm-4.30am.
Please note the Operational Allowance is paid with all leave payments.
Mine Site Cleaners
For the above roster scenario, if an employee was paid in the capacity of a Mine Site Cleaner position they would earn an additional Mine Site Operational Allowance of $0.25 per hour. This total allowance payment would then equate to a total allowance payment of $1.92 + $0.25 = $2.17 per hour. They would then earn $3,843.20 per cycle, $535.66 more than what would be paid under Hospitality Industry (General) Award 2010.
2. How clause 4.8.4 of the Agreement operates in relation to the annual salary arrangements at clause 4.5 of the Agreement?
Cater Care response:
The salary arrangement would cover the dollar value to guarantee 1% higher per annum than what would be earned under the Hospitality Industry (General) Award 2010; taking into account all earnings and leave payments associated with the roster and the position classification of the employee.
3. How the payment/amount of the operational allowance is reconciled against the loadings, allowances and penalties an employee would be otherwise entitled to under the Award to ensure employees are paid at least 1% above the Award rates and entitlements?
Cater Care response:
Please see our response to Question 1 which addresses this question.
4. How often is the payment/amount of the operational allowance reconciled against what would be payable under the Award?
Cater Care response:
Every time there is a shift change, a document is submitted to the HR department and the Operational Allowance is recalculated and updated in the payroll system for all required payments. An audit of Cater Care’s payroll system along with Cater Care Human Resources system is conducted on a 6 monthly basis to ensure the Operational Allowance is correct against rosters worked.
5. How employees are made aware of their hourly rate in relation to the operational allowance?
Cater Care response:
An employee’s hourly rate is as per the EBA and does not change in accordance with the Operational Allowance – it always remains the same. An Operational Allowance is paid in addition to the hourly rate for each hour worked.
How We Advise Employees Details of the Operational Allowance
The Operational Allowance calculation together with the confirmed hourly rate is detailed in the Letter of Appointment to all new employees. All new employees also receive a comprehensive remuneration schedule detailing how the Operational Allowance is calculated and demonstrating how the employee always earns a greater amount than they would if they were remunerated under Hospitality Industry (General) Award 2010.” 7
[20] My concern with the Applicant’s responses to the questions above is that the rosters provided by the Applicant which indicate employees would be better off overall under the Agreement do not form part of the Agreement. Therefore, rosters which do not form a part of the Agreement are of little value as the Operational Allowance would apparently apply to all methods of working under the Agreement.
[21] Further, in order to assess if employees are better off overall when entitlements to penalties, loadings and allowance are substituted for the payment of an Operational Allowance it is necessary to understand the quantum of that allowance. However, I am unable to quantify the effect of this Operational Allowance as it is set entirely at the Employer’s discretion.
[22] The clause provides a guarantee that all employees are to be paid a minimum of 1% above the Award. However, this does not resolve my concern that employees will be better off overall in circumstances where it is not possible to calculate the effect of the discretionary Operational Allowance scheme.
[23] The calculations provided by the Applicant in their submissions explain how the Operational Allowance is calculated but do not appear in the Agreement and are reflective of specific working patterns. There is no doubt in the example given in the Applicant’s submissions that employees are better off when compared to the Award. However, the example relies on a calculation based on the Operational Allowance being $1.92 That amount of operational allowance, or any other amount of operational allowance is not set out in the Agreement.
[24] As I still had a concern as to whether employees are better off overall, I listed the matter for hearing on 22 May 2020. At the hearing, I allowed the Applicant an opportunity to be heard on my concerns about the Agreement. At the hearing there was a particular focus on the Operational Allowance and my concerns associated with that provision.
[25] At the conclusion of the hearing I informed the Applicant that I would provide an opportunity for them to proffer further undertakings in relation to my concerns. However, I did also advise the Applicant that any undertaking provided would not be able to have the effect of resulting in substantial changes to the Agreement. 8
[26] During the hearing the AWU submitted that they shared my concerns around the BOOT and stated that they believe it is a complicated Agreement and that it would be hard for employees to understand what they are meant to be paid under the Agreement. 9
[27] Subsequent to the hearing I issued Directions affording the Applicant a further opportunity to provide any submissions or undertakings primarily relating to my concerns with the Operational Allowance and providing the AWU an opportunity to respond to these submissions and undertakings.
[28] On 5 June 2020 the Applicant provided their response to the Directions including the first undertaking regarding the Operational Allowance, hereby referred to as the “first undertaking”, in the following terms:
“Dear Commissioner Lee
Cater Care Services Pty Ltd Agreement (AG2020/535)
Undertaking (s.139 Terms that may be included in modern awards - general 149 Automatic Variation of Allowances of the Fair Work Act 2009 and Clause 26 Allowance of the Hospitality Industry (General) Award 2010)
I, Peta McDonnell, General Manager, Human Resources for Cater Care Services Pty Ltd give the following undertaking with respect of the Cater Care Services Pty Ltd Agreement 2020-2024:
I have the authority given to me by Cater Care Services Pty Ltd to provide this undertaking in relation to the application before the Fair Work Commission.
We undertake to replace Clause 4.8 Operational Allowance with the following.
Clause 4.8. OPERATIONAL ALLOWANCE
4.8.1 The Company will pay each Employee an Operational Allowance in addition to the employee’s hourly rate for every hour worked.
The minimum standard operational allowance (irrespective of the roster worked) includes:
• Annual Leave Loading
• Laundry Allowance
• 1% guarantee (clause 4.8.4) of at least 1% more remuneration than what would be received under the Hospitality Industry (General) Award 2010 (without a deduction of meals and accommodation for an employee classified as a distant worker)
The amount of the Operational Allowance is at the Company’s discretion and, provided the guarantee in clause 4.8.4 of this Agreement is satisfied, may compensate employees for:
The roster and location of a particular site:
a) the roster and location of a particular site;
b) loadings otherwise payable under this Agreement (Including, but not limited to, annual leave loading);
c) allowances otherwise payable under this Agreement (including, but not limited to, tool allowances, first aid allowances, laundry allowances, broken shift allowances);
d) penalties otherwise payable under this Agreement (including, but not limited to, penalties for late night or early morning work)
4.8.2 Prior to paying an Employee an Operational Allowance, the Company will advise the employee in writing with a remuneration calculator precisely which (if any) loadings, allowances, penalties and 1% dollar value of remuneration in excess of the Hospitality Industry (General) Award 2010 (clause 4.8.4) the Operational Allowance compensates employees for.
4.8.3 The Operational Allowance will vary between different client work Sites and this allowance may be varied at the Company’s discretion whilst still ensuring an employee is still better off than the Hospitality Industry (General) Award 2010 for the roster they work.
4.8.3 (a) The Operational Allowance will change if an employee’s roster cycle changes or shifts change due to different penalties and allowances being applicable to shifts. In such circumstances an employee will always be provided with a documented remuneration calculator confirming changes of the Operational Allowance.
4.8.3 (b) The Operational Allowance will be increased in accordance with the annual minimum rate decision of the Fair Work Commission.
(c) The following table provides the minimum Operational Allowance for each pay level of the Agreement for a 2 weeks on and 1 week off roster.
Classification Level (Clause 4.1) | Minimum Operational Allowance for a 2 weeks on and 1 week off roster |
Introductory | $0.54 |
Level 1 | $0.55 |
Level 2 | $0.57 |
Level 3 | $0.59 |
Level 4 | $0.61 |
Level 5 | $0.65 |
Level 6 | $0.66 |
4.8.4 The Company guarantees that Employees covered by this Agreement will receive at least 1% more remuneration (inclusive of the Operational Allowance) than what they would have received under the terms of the Hospitality Industry (General) Award 2010.
4.8.5 Mine Site Cleaner Operational Allowance
An employee performing the role of Mine Site Cleaner (according to Clause 4.1 Classifications) will receive an additional Mine Site Cleaner Operational Allowance of at least a minimum of $0.25 per hour. For the avoidance of doubt the $0.25 per hour is in additional to the Operational Allowance. However, if an employee performing the role of Mine Site Cleaner is already receiving an Operational Allowance that is greater than 1% more remuneration than the Hospitality Industry (General) Award 2010 and $0.25 per hour, it is at the employer’s discretion whether to increase the total allowances to be higher than $0.25 per hour and 1% more remuneration higher than the Hospitality Industry (General) Award 2010.
Peta McDonnell
4 June 2020” 10
[29] It can be seen that the first undertaking replicates the existing Agreement clause but expands on clauses 4.8.1, 4.8.2 and 4.8.3. Clause 4.8.1 now includes further context regarding the guarantee that employees will receive at least a 1% increase above the Award payment they would be entitled to for each hour worked.
[30] The first undertaking replaces the existing words at clause 4.8.2 “will tell the Employee precisely which (if any) loadings allowances and penalties that the Operational Allowances compensates employees for” with the words “will advise the employee in writing with a remuneration calculator precisely which (if any) loadings, allowances, penalties and 1% dollar value of remuneration in excess of the Hospitality Industry (General) Award 2010 (clause 4.8.4) the Operational Allowances compensates employees for.” Therefore, having the effect of clarifying that the Operational Allowance should guarantee employees in receipt of it will be paid above Award rates.
[31] Additions to clause 4.8.3 in the first undertaking include three new subclauses. Subclause 4.83(a) which provides that the Operational Allowance will change with changes in an employee’s rosters and shift and that in such circumstances an employee will be provided with a documented renumeration calculator confirming the changes to the Operational Allowance, subclause 4.8.3(b) which provides that the Operational Allowance will increase in accordance with the annual minimum rate decision of the Fair Work Commission (the Commission) and 4.8.3(c) which provides a table highlighting the minimum hourly Operational Allowance for an employee working for a two weeks on and one week off roster.
[32] The AWU provided views on the first undertaking as follows;
“Clause 4.8 – Operational Allowance
The AWU notes that the introduction of a table in clause 8.4 outlining the minimum operational allowance payable per hour for employees working a 2/1 roster now permits some calculations to be made for the purposes of the BOOT.
Whilst an improvement on the original, the proposed undertaking is complex and, in the opinion of the AWU, may not be adequate to permit the Commission to be satisfied that the agreement passes the BOOT for all employees covered.
The proposed undertaking provides allowance rates for employees working a 2/1 roster, but no allowance rates for employees who work other rosters or a method of calculating the quantum of the minimum allowances for other rosters.
As the agreement provides for any number of rosters to be worked, without those allowances or a method for calculating them, calculating minimum rates of pay for employees working rosters other than a 2/1 roster is not possible.
We also note that the clause appears to intend to operate as a ‘proactive’ reconciliation clause whereby a payment is made to ensure that employees are at least 1% better off than they would be if they were paid in accordance with the underpinning award. However, once the ‘remuneration calculator’ is provided at the commencement of the employee’s employment, there doesn’t appear to be any safeguard to ensure the payments made remain in excess of the underpinning award. In the circumstances where the guarantee of earnings is merely 1% better than the underpinning award, it would be more than appropriate for a requirement of periodic auditing to be conducted by the company.
The clause states that the remuneration calculator will be provided to an employee prior to the employee being paid an operational allowance that shows which loadings, allowances and penalties (if any) that the allowance will be paid to them in lieu of. Due to the inclusion of the words ‘if any’, the AWU would like confirmation, preferably in the clause itself, that the remuneration calculator will be provided to every employee.
Schedule 1 – Remuneration Calculator
The remuneration calculator proposed by the company is confusing and the example provided in the calculator misleading.
In the example provided, it appears that the ‘Employment Offer’ is calculated to be approximately $1000 more without the payment of the operational allowance, despite the hourly rate, penalties and loadings all being the same between the two columns.
It appears that the ‘Employment Offer’ column achieved this superior result by comparing the remuneration received by an employee who takes 4 weeks of annual leave (at the base rate of pay) in the year with an employee who takes none.
All things being equal, the ‘Employment Offer’ would be $200 less than that calculated in the left hand column, which makes the statement that the wages ‘exceed the application of the terms under the applicable Agreement’ in the box below the columns incorrect.
The remuneration calculator does not on its face permit the calculation of annual leave in the ‘Employment Offer’ column and is therefore incomplete.
The AWU is does not believe that the undertakings proposed by the business adequately address our principle concerns around ensuring employees are better off overall compared with the award.” 11
[33] The Applicant was provided with a further opportunity to comment on the AWU’s submissions to which they proffered a further revised undertaking in relation to the Operational Allowance. The revised undertaking, which will be referred to as the “second undertaking”, added a new subclause 4.8.3(b) which provides that an audit will be undertaken by the Human Resources department of the Applicant on a six monthly basis to confirm the Operational Allowance paid to an employee is correct when compared with the roster worked. If any adjustment is required the employee will be consulted and the adjustment processed within the next applicable pay run. The inclusion of this subclause caused the former subclauses 4.8.3(b) and 4.8.3(d) to be reclassified as subclauses 4.8.3(c) and 4.8.3(d) respectively. Furthermore the second undertaking included more tables at subclause 4.8.3(d) indicating the minimum operational allowance for five days on two days off (Monday to Friday, 10 hour shift) roster, three weeks on one week off (10 hour shift) roster and seven days on and seven days off (11 hour shift) roster. The second undertaking is extensive and is set out below:
“Dear Commissioner Lee
Cater Care Services Pty Ltd Agreement (AG2020/535)
Undertaking (s.139 Terms that may be included in modern awards - general 149 Automatic Variation of Allowances of the Fair Work Act 2009 and Clause 26 Allowance of the Hospitality Industry (General) Award 2010)
I, Peta McDonnell, General Manager, Human Resources for Cater Care Services Pty Ltd give the following undertaking with respect of the Cater Care Services Pty Ltd Agreement 2020-2024:
I have the authority given to me by Cater Care Services Pty Ltd to provide this undertaking in relation to the application before the Fair Work Commission.
We undertake to replace Clause 4.8 Operational Allowance with the following.
Clause 4.8. OPERATIONAL ALLOWANCE
4.8.1 The Company will pay each Employee an Operational Allowance in addition to the employee’s hourly rate for every hour worked.
The minimum standard operational allowance (irrespective of the roster worked) includes:
• Annual Leave Loading
• Laundry Allowance
• 1% guarantee (clause 4.8.4) of at least 1% more remuneration than what would be received under the Hospitality Industry (General) Award 2010 (without a deduction of meals and accommodation for an employee classified as a distant worker)
The amount of the Operational Allowance is at the Company’s discretion and, provided the guarantee in clause 4.8.4 of this Agreement is satisfied, may compensate employees for:
a) the roster and location of a particular site;
b) loadings otherwise payable under this Agreement (Including, but not limited to, annual leave loading);
c) allowances otherwise payable under this Agreement (including, but not limited to, tool allowances, first aid allowances, laundry allowances, broken shift allowances);
d) penalties otherwise payable under this Agreement (including, but not limited to, penalties for late night or early morning work)
4.8.2 Prior to paying an Employee an Operational Allowance, the Company will advise all employees in writing with a remuneration calculator precisely which (if any) loadings, allowances, penalties and 1% dollar value of remuneration in excess of the Hospitality Industry (General) Award 2010 (clause 4.8.4) the Operational Allowance compensates employees for.
4.8.3 The Operational Allowance will vary between different client work Sites and this allowance may be varied at the Company’s discretion whilst still ensuring an employee is still better off than the Hospitality Industry (General) Award 2010 for the roster they work.
4.8.3 (a) The Operational Allowance will change if an employee’s roster cycle changes or shifts change due to different penalties and allowances being applicable to different shifts. In such circumstances an employee will always be provided with a documented remuneration calculator confirming changes of the Operational Allowance.
4.8.3 (b) An audit will be undertaken by the Human Resources department on a six monthly basis to confirm that the Operational Allowance paid is correct compared with rosters worked. If any adjustment is required the employee will be consulted and the adjustment processed within the next applicable pay run.
4.8.3 (c) The Operational Allowance will be increased in accordance with the annual minimum rate decision of the Fair Work Commission.
4.8.3 (d) The following table provides the minimum Operational Allowance for common rosters worked in our remote sector workforce.
2 weeks on and 1 week off (10 hour shift)
Classification Level (Clause 4.1) | Minimum Operational Allowance |
Introductory | $0.53 |
Level 1 | $0.55 |
Level 2 | $0.57 |
Level 3 | $0.59 |
Level 4 | $0.61 |
Level 5 | $0.65 |
Level 6 | $0.66 |
5 days on and 2 days off (Monday to Friday, 10 hour shift)
Classification Level (Clause 4.1) | Minimum Operational Allowance |
Introductory | $0.53 |
Level 1 | $0.55 |
Level 2 | $0.57 |
Level 3 | $0.58 |
Level 4 | $0.61 |
Level 5 | $0.64 |
Level 6 | $0.66 |
3 weeks on and 1 week off (10 hour shift)
Classification Level (Clause 4.1) | Minimum Operational Allowance |
Introductory | $0.52 |
Level 1 | $0.54 |
Level 2 | $0.56 |
Level 3 | $0.58 |
Level 4 | $0.60 |
Level 5 | $0.64 |
Level 6 | $0.65 |
7 days on and 7 days off (11 hour shift)
Classification Level (Clause 4.1) | Minimum Operational Allowance |
Introductory | $0.61 |
Level 1 | $0.63 |
Level 2 | $0.65 |
Level 3 | $0.67 |
Level 4 | $0.69 |
Level 5 | $0.73 |
Level 6 | $0.75 |
4.8.4 The Company guarantees that Employees covered by this Agreement will receive at least 1% more remuneration (inclusive of the Operational Allowance) than what they would have received under the terms of the Hospitality Industry (General) Award 2010.
4.8.5 Mine Site Cleaner Operational Allowance
An employee performing the role of Mine Site Cleaner (according to Clause 4.1 Classifications) will receive an additional Mine Site Cleaner Operational Allowance of at least a minimum of $0.25 per hour. For the avoidance of doubt the $0.25 per hour is in additional to the Operational Allowance. However, if an employee performing the role of Mine Site Cleaner is already receiving an Operational Allowance that is greater than 1% more remuneration than the Hospitality Industry (General) Award 2010 and $0.25 per hour, it is at the employer’s discretion whether to increase the total allowances to be higher than $0.25 per hour and 1% more remuneration higher than the Hospitality Industry (General) Award 2010.
Peta McDonnell
17 June 2020” 12
[34] I note that I did not seek the views of the AWU on this second undertaking. However, that was not necessary as, for the reasons for that follow, I have chosen not to accept it.
Consideration.
Better Off Overall Test:
[35] Section 193 of the Act is as follows:
“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.”
[36] As the Full Bench noted in Hart v Coles Supermarkets Australia Pty Ltd, 13s.193 of the Act requires the Commission to be satisfied that a “consideration of all the benefits and detriments under the Agreement results in each employee and each prospective employee being better off overall under the Agreement compared to the Award.”14
[37] Rates of pay under the Agreement are the same as the relevant Award. There are some more beneficial terms as noted in the Applicant’s Form F17 and referenced at paragraph [9] above. Notwithstanding the undertakings which negate a number of the less beneficial terms, a number remain. This is particularly important in a case where the rates of pay are exactly the same as the Award and so one must look to the other terms of the Agreement to determine if employees are better off as the rates of pay are identical, not better.
[38] The key issue is that the Operational Allowance operates in effect as a "loaded rate”. That is, the Employer is able, at its discretion, to alter various penalties. The undertaking provided includes a minimum Operational Allowance that would apply to a particular shift roster. However, there is still a concern with the Operational Allowance, even with the first undertaking provided.
[39] Firstly, modelling shows that even if the Operational Allowance from the first undertaking was the minimum rate for the two weeks on and one week off roster, not all employees would be better off overall.
[40] It is important to note that the following models include deduction for accommodation and meals in accordance with clause 39 of the Award. In the Applicant’s Form F17 and subsequent undertakings, they state that accommodation and meals are provided to employees who would be classified as distance work employees. In their original BOOT submissions the Applicant’s calculations show employees working the two week on one week off roster are provided with accommodation and meals; thus it is appropriate to deduct that cost from the Award calculation. However, I note that clause 4.11 of the Agreement and the undertakings proffered provide that it is only distance work employees who are eligible to receive accommodation and meals and does not expressly provide that accommodation and meals would be available to all employees working the two week on one week off roster. Furthermore, the Applicant’s original BOOT submissions omit the accommodation and meals benefit for employees who work the five days on two days off roster, which suggests there are employees covered by the Agreement who would not be considered distance work employees. Therefore, by virtue of including the deduction for accommodation and meals in the models below, it must be acknowledged that the models are weighted more favourably towards the Agreement.
[41] The model below applies to the Level 2 classification of the Agreement and demonstrates the distribution of hours for the two week on one week off roster provided by the Applicant in their submissions accompanying the first undertaking:
Agreement Ordinary Rate | $20.82 | Award Ordinary Rate | $20.82 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Monday - Friday ordinary hours | 80 | 100% | $1,665.60 | Monday - Friday ordinary hours | 80 | 100% | $1,665.60 |
Saturday as ordinary hours | 16 | 125% | $416.40 | Saturday as ordinary hours | 16 | 125% | $416.40 |
Sunday as ordinary hours | 16 | 150% | $499.68 | Sunday as ordinary hours | 16 | 150% | $499.68 |
Monday - Friday overtime | 20 | 150% | $624.60 | Monday - Friday overtime | 20 | 150% | $624.60 |
Saturday overtime | 4 | 200% | $166.56 | Saturday overtime | 4 | 200% | $166.56 |
Sunday overtime | 4 | 200% | $166.56 | Sunday overtime | 4 | 200% | $166.56 |
Allowances | Amount | Value | Allowances | Amount | Value | ||
Operational Allowance | 140 | $0.57 | $79.80 | Laundry Allowance | 2 | $6.00 | $12.00 |
Accommodation and meals deduction | 2 | -$215.63 | -$431.26 | ||||
Annual Leave | Yes | $182.58 | Annual Leave | Yes | $182.58 | ||
Leave Loading | No | $0.00 | Leave Loading | Yes | $31.95 | ||
Totals | 140.00 | Hrs | $3,801.78 | Totals | 140.00 | Hrs | $3,334.67 |
[42] It is evident that the model above indicates when the Applicant’s rostering submissions are followed exactly, the Operational Allowance from the first undertaking of $0.57 per hour worked is sufficient to guarantee employees are better off overall. However, the above model is reliant on all penalty rates of the Agreement being payable, employees only being entitled to the laundry allowance and employees being provided accommodation and meals by the Employer. If the Operational Allowance for the same roster was required to compensate an employee for penalties otherwise payable under the Agreement, as stated at clause 4.8.1(d) of the Agreement, and as replicated in the subsequent undertakings, the model for a two week on one week off roster may indicate an employee would not pass the BOOT.
[43] As per clause 4.8.1(d) of the Agreement the model below illustrates the Operational Allowance of $0.57 will not compensate for all penalties to which an employee would be entitled in accordance with the Applicant’s submissions for the two weeks on one week off roster:
Agreement Ordinary Rate | $20.82 | Award Ordinary Rate | $20.82 | ||||
Hours | Loading | weekly total | Hours | Loading | weekly total | ||
Monday - Friday ordinary hours | 80 | 100% | $1,665.60 | Monday - Friday ordinary hours | 80 | 100% | $1,665.60 |
Saturday as ordinary hours | 16 | 100% | $333.12 | Saturday as ordinary hours | 16 | 125% | $416.40 |
Sunday as ordinary hours | 16 | 100% | $333.12 | Sunday as ordinary hours | 16 | 150% | $499.68 |
Monday - Friday overtime | 20 | 100% | $416.40 | Monday - Friday overtime | 20 | 150% | $624.60 |
Saturday overtime | 4 | 100% | $83.28 | Saturday overtime | 4 | 200% | $166.56 |
Sunday overtime | 4 | 100% | $83.28 | Sunday overtime | 4 | 200% | $166.56 |
Allowances | Amount | Value | Allowances | Amount | Value | ||
Operational Allowance | 140 | $0.57 | $79.80 | Laundry Allowance | 2 | $6.00 | $12.00 |
Accommodation and meals deduction | 2 | -$215.63 | -$431.26 | ||||
Annual Leave | Yes | $182.58 | Annual Leave | Yes | $182.58 | ||
Leave Loading | No | $0.00 | Leave Loading | Yes | $31.95 | ||
Totals | 140.00 | Hrs | $3,177.18 | Totals | 140.00 | Hrs | $3,334.67 |
[44] It is accepted that the specific rates for the Operational Allowance expressed in the first and second undertakings do not represent the totality of all possible Operational Allowances on the rosters named by the Employer. However, the fact that by the Applicant’s own submissions, the content of the undertakings are merely a minimum rate of Operational Allowance does not resolve the uncertainty surrounding the Operational Allowance. That is to say the undertakings do not make the operation and quantum of the Operational Allowance clear.
[45] Further, the Applicant accepted at the hearing they could work other rosters beside the two weeks on two weeks off roster:
“We don't declare the rosters within the agreement because there are various rosters that can be worked.” 15
[46] In the loaded rates case 16, the Full Bench of the Fair Work Commission stated:
“…where the agreement has a different pay structure than the award, particularly a loaded rates structure which incorporates some or all of the penalty rates which would be payable if the award applied, no meaningful comparison can be conducted without applying the loaded rates to the working hours patterns actually worked or reasonably capable of being worked under the agreement” 17
[47] As demonstrated above the models are solely based on the hours the Applicant submitted were part of the two weeks on one week off roster, which in itself does not form part of the Agreement. Therefore, even if it can be demonstrated employees would be better off overall if working this roster, it is not guaranteed under the Agreement that employees would definitely work in an equivalent manner. In fact, the Applicant’s submissions at the hearing suggest the opposite.
[48] Given the lack of transparency in the Agreement as to how the Operational Allowances are calculated, I am not satisfied, at test time, that employees would be better off overall. The task of assessing the BOOT where a loaded rate is involved is essentially a mathematical one where the terms being compared relate directly to remuneration. 18 It is not possible with this Agreement to conduct that mathematical exercise as the quantum of the Operational Allowance is simply unknown. Considering the first undertaking provided, the quantum of the Operational Allowance remains unknown for rosters other than the one provided in the undertaking.
[49] Thirdly, the reference to the remuneration calculator was not referenced in the original Agreement and the methodology behind it was only provided to the Commission via submissions. To include it by way of undertaking, including a particular roster pattern or specific Operational Allowance raises a concern regarding substantial change. The Commission may accept an undertaking that addresses a concern provided that the undertaking is not likely to cause financial detriment to any employees covered by the Agreement or result in substantial changes to the Agreement. 19 The concern that I have in respect of the first Operational Allowance undertaking is that it represents an attempt to include a roster and minimum rates of Operational Allowance that was not contemplated within the terms of the original Agreement.
[50] The second undertaking that is proffered as set out at paragraph [33] above is clearly more extensive in terms of the substantial change that it introduces to the Agreement. Aside from the inclusion of a six-monthly reconciliation the second undertaking incorporates a number of unfamiliar rosters and associated minimum rates of Operational Allowance. As stated by the Full Bench in CFMEU v Kaefer Integrated Services Pty Ltd 20, s.190(3) of the Act:
“does not permit undertakings that result in the wholesale reshaping of the agreement, such that it bears no resemblance to the pre-undertaking agreement that was approved by the employees”. 21
[51] The second undertaking proffered, in my view, particularly when combined with the numerous other undertakings that have been provided, results in a wholesale reshaping of the Agreement and for that reason cannot be accepted.
[52] Finally, while there is a guarantee that the Agreement will yield a benefit to employees at least 1% better than the Award, this is does not satisfy my concerns as I am unable to be satisfied that this would actually be achieved given the uncertainty surrounding the Operational Allowance. Further, to the extent that the 1% guarantee and associated commitment to a six-monthly audit would operate as a type of reconciliation undertaking, it is not consistent with the principles set out in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery 22 as follows:
“[45] The second obvious flaw in the undertaking is that since an employee’s consideration that he or she is not better off overall under the agreement compared to the applicable award arises by reference to a four month period, this necessarily means that any review as might be conducted would only occur three times a year in respect of each employee. The inevitable consequence is a delay in payment to an employee. Moreover, the potential length of the delay is unknown as disputes may arise about the quantum of payment due under the undertaking as is apparent from the dispute resolution mechanism established by the undertaking. In these circumstances it is by no means apparent that a 1.5% increase in payment might compensate an employee for that which could be a substantial difference in entitlements over a potentially lengthy and indeterminate period.” 23
[53] In summary, I am not satisfied that the Agreement as lodged passes the better off overall test. Nor am I satisfied that the first undertaking, for the reasons set out above, would result in employees being better off overall. In any case, I cannot accept the undertaking as I consider it to represent substantial change. The second Operational Allowance undertaking provided would clearly have the effect of reshaping the agreement and thus would clearly result in substantial change to the Agreement and cannot be accepted for that reason.
[54] Consequently, I am unable to be satisfied that employees engaged under the Agreement will be better off overall when compared against the relevant Award as required by s193(1) of the Act. Therefore, I am not satisfied that the requirements of s.186(2)(d) of the Act are met.
Conclusion
[55] For the above reasons I cannot approve the Agreement as I am not satisfied that the requirements of s.186(2)(d) of the Act. Therefore, the application is dismissed.
COMMISSIONER
Appearances:
Mr C. Muir, Ms P. McDonnell and Ms A. Lenard for the Applicant
Mr S. Roulstone for the AWU
Hearing details:
22 May 2020
Final written submissions:
17 June 2020
Printed by authority of the Commonwealth Government Printer
<PR720263>
1 Response to question 5 of AWU’s Form F18 - Declaration of an employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfeilds agreement).
2 Response to Q3.3 of the Applicants Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) (Form F17).
3 Clause 4.8 of the Cater Care Services Agreement 2020 – 2024.
4 [2017] FWCFB 1664.
5 Email from the Applicant dated 15 May 2020.
6 Email from the Applicant dated 1 May 2020.
7 Submissions from the Applicant dated 15 May 2020.
8 PN103 - PN104.
9 PN115 - PN117.
10 Applicant’s undertaking provided to the Fair Work Commission on 5 June 2020.
11 AMWU submissions dated 10 June 2020.
12 Applicant’s undertaking provided to the Fair Work Commission on 17 June 2020.
13 [2016] FWCFB 2887.
14 Ibid at [33].
15 PN77.
16 [2018] FWCFB 3610.
17 Ibid at [107].
18 Ibid at [115](9).
19 Construction, Forestry, Maritime, Mining and Energy Union v Lightning Brick Pavers t/a Lightning Brick Pavers [2018] FWCFB 3825 at [23].
20 [2017] FWCFB 5630.
21 Ibid at [41]. Construction, Forestry, Maritime, Mining and Energy Union v Lightning Brick Pavers t/a Lightning Brick Pavers [2018] FWCFB 3825 at [25].
22 [2017] FWCFB 1664.
23 Ibid at [45].
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