CostaExchange Pty Ltd T/A Costa (Berry Category)

[2019] FWC 8291

[2019] FWC 8291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CostaExchange Pty Ltd T/A Costa (Berry Category)
(AG2019/2033)

Agricultural industry
COMMISSIONER BISSETT	MELBOURNE, 6 DECEMBER 2019

Application for approval of the Costa (Berry Category) Enterprise Agreement 2019 – 2023 – agreement will be approved on receipt of signed undertaking.

[1] CostaExchange Pty Ltd T/A Costa (Berry Category) (the Applicant) has made an application to the Fair Work Commission (Commission) pursuant to s.185 of the Fair Work Act 2009 (FW Act) for the approval of the Costa (Berry Category) Enterprise Agreement 2019 - 2023 (Agreement). The Agreement is a single enterprise agreement. The application was made on 14 June 2019.

Does the Agreement pass the better off overall test?

[2] The Australian Workers’ Union (AWU) identified a number of matters in relation to whether the Agreement passed the better off overall test (BOOT) and hence could be approved.

[3] Following a number of conferences between Applicant and the AWU facilitated by the Commission and otherwise the Applicant has proposed a number of undertakings. I deal with the proposed undertakings later in this decision.

[4] The final outstanding issue in relation to the BOOT goes to the hours of work provisions in the Agreement. The relevant Award for the purposes of the BOOT is the Horticulture Award 2010 1 (Award).

Hours provision in the Agreement and the Award

[5] Clause 22 of the Award deals with hours of work and provides as follows:

22. Ordinary hours of work and rostering

22.1  The ordinary hours of work for all full-time and part-time employees other than shiftworkers will not exceed 152 hours over a four week period provided that:

(a)  The ordinary hours will be worked between Monday and Friday inclusive except by arrangement between the employer and the majority of employees in the section/s concerned that the ordinary hours will be worked between Monday and Saturday inclusive.

(b)  The ordinary hours will be worked between 6.00 am and 6.00 pm except if varied by arrangement between the employer and the majority of the employees in the section/s concerned.

(c)  The ordinary hours will not exceed eight hours per day except by arrangement between the employer and the majority of employees in the section/s concerned in which case ordinary hours should not exceed 12 hours on any day.

(d)  All time worked by full-time and part-time employees in excess of the ordinary hours will be deemed overtime.

22.2  The ordinary hours of work for casual employees other than shiftworkers will not exceed 304 ordinary hours over an eight week period provided that:

(a)  Ordinary hours of work for casual employees can be worked at any time.

(b)  Each ordinary hour of work worked by a casual employee on any day of the week (excluding public holidays) between 5.00 am and 8.30 pm will be paid at the employee’s minimum hourly wage for his or her classification plus a casual loading of 25%.

(c)  In a State or Territory that does not observe daylight saving time, by agreement between the employer and a majority of affected casual employees, the 5.00 am to 8.30 pm daily spread of hours can be moved forward one hour (4.00 am to 7.30 pm) for the period of daylight saving time in other States and Territories.

(d)  Each ordinary hour worked by a casual employee on any day of the week (excluding public holidays) between 8.31 pm and 4.59 am (or 7.31 pm and 3.59 am in accordance with clause 22.2(c)) will attract a loading of 15% of the employee’s minimum hourly wage for his or her classification (in addition to the casual loading of 25%).

(e)  The maximum number of ordinary hours which a casual employee may work per engagement, or on any day, is 12 ordinary hours.

(f)  All time worked in excess of 12 hours per engagement, 12 hours in a single day or 304 ordinary hours over an eight week period will be deemed overtime.

22.3  The ordinary hours of work for a shiftworker will not exceed 152 hours over a four week period provided that:

(a)  The ordinary hours will be worked between Monday and Friday inclusive.

(b)  For the purposes of this award:

(i) afternoon shift means any shift finishing after 6.00 pm and at or before midnight; and

(ii) night shift means any shift finishing after midnight and at or before 8.00 am.

(c)  If an employee is directed to work on shifts the shift must not exceed eight hours without the payment of overtime.

(d)  Shiftworkers whilst on afternoon and night shifts will be paid 15% more than the ordinary rates for such shifts.

(e) Where shiftwork is adopted, shifts will, as far as practicable, rotate regularly where two shifts are worked one will be regarded as day shift and the second the afternoon or night shift. Where three shifts are worked they will be divided into day, afternoon and night shifts.

(f) The employer has the right to decide before the commencement of such shiftwork which of the shifts will be the day shift and will notify each employee accordingly.

(g) The employer will keep a roster at the workplace that specifies the times which each shift will commence and finish and which shifts are deemed to be day shift.

(h) All time worked in excess of the ordinary hours will be deemed overtime.

[6] Clauses 15 and 36 of the Agreement deal with hours of work and provide as follows:

15. ORDINARY HOURS

15.1. The ordinary hours of work for those employees who are not employed on a casual basis will not exceed 152 hours over a four-week period provided that:

a) The ordinary hours will be worked between Monday and Saturday inclusive;

b) The ordinary hours will be worked between 5.00am and 5.00pm except if varied by arrangement between the Company and the majority of the employees in the section/s concerned;

c) The ordinary hours will not exceed 12 hours per engagement or 12 hours on single day; and

d) Subject to clause 36 – Night Shift Loading, all time worked by full-time and part-time employees in excess of the ordinary hours will be deemed overtime.

15.2. The ordinary hours of work for casual employees will not exceed 304 hours over an eight-week period provided that:

a) The ordinary hours will be worked between Monday and Sunday inclusive;

and

b) The ordinary hours will be worked between 5.00am and 8.30pm except if varied by arrangement between the Company and the majority of the employees in the section/s concerned;

c) In a State or Territory that does not observe daylight saving time, by agreement between the Company and a majority of affected casual employees, the 5.00am to 8.30pm daily spread of hours can be moved forward one hour (4.00am to 7.30pm) for the period of daylight saving time in other States and Territories; and

d) The maximum number of ordinary hours which a casual employee may work per engagement, or on any day, is 12 ordinary hours.

15.3. For casual employees, all time worked in excess of 12 hours per engagement, 12 hours on a single day or 304 hours over an eight-week period, will be deemed overtime.

15.4. The four-week period referred to in clause 15.1 of this Agreement and the eight-week period referred to in clause 15.2 of this Agreement will commence from the first full pay period after the date that this Agreement commences…

36. NIGHT SHIFT LOADING

36.1. This loading applies to those employees engaged to work a component of their ordinary hours, outside the span of Ordinary Hours defined in clause 15 – Ordinary Hours.

36.2. Each ordinary hour worked by a casual employee on any day of the week (excluding public holidays) between 8.31pm and 4.59am, will attract a loading of 15% of the employee’s base rate for their classification.

36.3. Casual employees will receive the casual loading as prescribed in clause 25.2, in addition to the 15% loading prescribed in clause 36.2

36.4. Where a full-time, part-time or maximum-term employee is rostered for a shift where the shift end time is after 5.00pm (excluding public holidays), those employees will be paid a loading of 15% of the employee’s base rate for that shift.

36.5. Where an employee’s time worked is in excess of their ordinary hours as prescribed in clause 15 – Ordinary Hours, of this Agreement, those hours will be deemed overtime and will attract overtime rates as prescribed in clause 30 – Overtime, of this Agreement, and the Night Shift Loading will not apply.

[7] The AWU submitted that the provisions of the Agreement that extend the time when ordinary hours can be worked (clause 15.1) and remove casuals from access to the shift work provisions (clause 15.2) mean that some employees are not better off overall under the Agreement compared to the Award. They say this is so as there is no ‘wage premium’ in the Agreement over and above that in the Award.

[8] In order to attempt to resolve this issue (and one other issue in relation to classifications) I issued a Statement, by agreement of the parties, in which I expressed a provisional view. The classification matter was resolved following that Statement by the provision of an undertaking. The hours of work issue was not resolved and was subject to a hearing.

[9] I had previously granted the Applicant permission to be represented by a lawyer (Ms Masters) pursuant to s.596(2) of the FW Act. The AWU was represented by Mr Sage, an employee of the AWU.

Submissions

CostaExchange Pty Ltd T/A Costa (Berry Category)

[10] The Applicant submitted that, contrary to the submissions of the AWU, the provisions of clause 22.1 of the Award do not require agreement to be reached between an employer and employees to alter when ordinary hours can be worked but rather it provides that the hours of work can be varied by arrangement between the employer and a section or sections of the business.

[11] The Applicant submits that the following arrangements of ordinary hours (as provided in clause 15 of the Agreement) are expressly allowed by the Award:

•  The inclusion of Saturday hours in the span of ordinary hours (Award clause 22.1(a));

•  Varying the span of hours such that ordinary hours can be worked between 5.00 am and 5.00 pm (Award clause 22.1(b));

•  Increasing the number of ordinary hours that can be worked to up to 12 hours per day (Award clause 22.2(c)).

[12] The Applicant submitted that the meaning of ‘arrangement’ as used in clause 22.1 of the Award was considered by me in Zabrdac v Transclean Facilities Pty Ltd 2(Zabrdac) where I held, after considering a range of decisions that dealt with that question, that:

[74] These decisions provide authority for the proposition that an arrangement, whilst not necessarily legally enforceable, requires:

•  That there be communication between the parties to the arrangement; and

•  That the parties must reach some understanding; and

•  That there is some expectation that each of the parties will behave in a particular way.

[75] An arrangement is not an expectation that a party will behave in a particular way and it cannot be contrived. It requires some substance.

[13] This meaning was adopted by the Full Bench of the Commission in John Lucas Hotel Management Services T/A World Square Pub v Hillie 3 (John Lucas Hotel Management).

[14] The Applicant submitted that there is no reason to assume that an arrangement cannot be reached in the bargaining process and that the circumstances of this matter demonstrate that the making of an enterprise agreement is the ‘best and most appropriate step to implement the arrangements permitted by the Award.’

[15] The Applicant also submitted that the Agreement was overwhelmingly supported by employees with over 75% of eligible employees voting to support the Agreement at the time it was made. It said that, of the 1331 employees who were eligible to vote, over 600 had voluntarily left employment with over 800 commencing employment such that a consideration of the views of employees today may well not reflect the views of employees who made the Agreement. Further, the Applicant stated that the workforce within the Applicant’s business is considered to be a national workforce with mobility within the business as employees follow the harvest (and other like) trails.

[16] The Applicant submitted that the Award anticipates an arrangement on hours being reached with multiple sections of the business and does not preclude an adjusted span of hours operating across the entire enterprise.

[17] The Applicant agreed that the span of hours arrangements under the Award only impact on full-time and part-time employees with casual employees having different arrangements (clause 22.2). It submitted however that the make-up of the workforce (the balance between casual and other employees) is such that it would not be feasible for the business to have different arrangements in different sections or between full-time and part-time and casual employees of the business and the fairest approach is to have hours of work arrangements that apply in all sections of the business.

[18] The Applicant submitted that, in circumstances such as these where the Award does allow for an altered span of hours and where what is permitted under the Award is reflected in the Agreement, the span of hours in the Agreement should be considered a neutral factor in considering the BOOT. 4

[19] The Applicant also submitted, in support of the expanded span of hours that:

•  There is no evidence employees do not support the extended span of hours in the Agreement;

•  Employees are not required to work any more ordinary hours than they would under the Award;

•  A more expanded span of hours may allow casual employees to work more ordinary hours which is then taken into account in any request to convert from casual to on-going employment.

[20] In response to the submissions of the AWU the Applicant submitted, in addition to that set out above, that:

•  The Applicant currently has in place an arrangement for the whole of the business which provides a greater span of hours consistent with that proposed in the Agreement;

•  Contrary to the submissions of the AWU the Award does not provide a mechanism by which employees can unilaterally return to a more limited span of hours;

•  The AWU submissions that the extended span of hours disadvantages employees who would otherwise receive penalty rates for those hours is misplaced as it does not factor in the operational changes the Applicant would make to its business to minimise costs (e.g. utilising the extended casual hours);

•  The AWU petition from irrigators at the Corindi site is not relevant as it does not necessarily reflect the views of a ‘section/s’ as that term is used in the Award, as a section could include all irrigators across all sites or the whole maintenance department or a collection of sites etc. Further, on-going irrigators at Corindi currently work a long standing roster consistent with the Award and Agreement;

•  The span of hours was not a contested issue in bargaining for the Agreement where the AWU was present as a bargaining representative.

The Australian Workers’ Union

[21] The AWU submitted that clause 22.1 of the Award is relevant to full-time and part-time employees only and there is no evidence from the Applicant that the majority of full-time and part-time employees either in individual work groups or collectively endorsed either the Agreement or the hours of work provisions.

[22] The AWU submitted that the data on casual employees at the time of voting on the Agreement and at the time the application for approval of the Agreement was made demonstrate that there were only 144 permanent employees covered by the Agreement or approximately 10.8% of the workforce. Of these, it submitted that it is not possible to determine what proportion supported the Agreement.

[23] The AWU relied on a petition of irrigators at the Corindi site, provided in submissions at the final hearing of the application, who are members of the AWU stating their opposition to the span of hours in the Agreement and indicating that they would not agree to such an arrangement under the Award.

[24] The AWU submitted that the extended span of hours in the Agreement is a less beneficial provision than that provided for under the Award. As such it is unclear how an employee would be better off under the Agreement than the Award having regard to the limited (and contingent) benefits available to employees under the Agreement. The AWU said it was not clear how a Level 1A or Level 2A employee would be better off in circumstances where higher junior rates of pay, labour flexibility and allowances are not applicable to all employees and pay progression provisions do not apply to employees engaged for less than 12 months. The AWU submitted that the only non-contingent more beneficial arrangement under the Agreement compared to the Award is a 15 minute (as opposed to 10 minute) paid rest break.

[25] Taking into account the loss of penalties that would otherwise be payable to employees under the Award for working the hours provided under the Agreement, the AWU submitted that it is difficult to see how employees could be better off under the Agreement.

[26] Relying of the decision in Mitolo Group Pty Ltd the AWU submitted that what could be added to the matters considered by Deputy President Bartel is the demographic information apparent in this case which, it said, clearly established that there is insufficient material on which the Commission could conclude that a majority of full-time and part-time employees voted for the Agreement.

[27] The AWU submitted that an undertaking that properly compensated permanent employees for the loss of the right to participate in the setting of ordinary hours as provided for in the Award may overcome the deficiency it identified.

[28] In further submissions, and in response to the matters raised by the Applicant, the AWU said:

•  The reliance on the decision in Zabrdac is misplaced as guidance was given to the interpretation of the provision under consideration in that matter in the Explanatory Memorandum to the Fair Work Bill 2019 which does not apply to the Award, the content of which was determined prior to commencement of the FW Act;

•  It is clear from clause 22.1 of the Award that the ‘arrangement’ contemplated by the clause must be endorsed by the majority of the work group;

•  A contention that the ‘arrangement’ only requires ‘some understanding with a majority of employees in a section affected’ to satisfy clause 22.1 is vague as to how a majority might be determined while a petition of employees rejecting the expanded hours is clear;

•  The majority vote in favour of the Agreement is not probative of the views of the permanent employees;

•  There are ‘significant permanent cohorts’ who form the basis of ‘well-established sections’ identified on payslips and in the Agreement itself balancing the Applicant’s claim that work groups are considered national with employees working across regions.

[29] The AWU rejected the claim of the Applicant that the hours issue should be considered a neutral BOOT consideration and relied on its material demonstrating how Corindi irrigation employees would be financially worse off with the hours proposed in the Agreement than if they were receiving penalties under the Award.

[30] The AWU identified a further issue with casual employees who, it said, cannot be defined as shiftworkers under the Agreement when they can under the Award. It says that such casual employees would not have the benefit of the shift loading for the totality of their shift under the Agreement when they would be entitled to receive such a loading under the Award.

[31] Further, the AWU submitted that flexibilities found in the Award – including the right to take annual leave when excessive credits are built up – are not included in the Agreement and additional obligations are placed on employees under clause 9 of the Agreement.

Consideration

[32] The critical issue in relation to the final matters to be determined is the extent to which the proposed hours clause under the Agreement may not result in employees being better off overall under the Agreement. Given the late identification of the issue of casual employees being defined as shift workers the hours of work issue falls into two areas – hours and change to the span of hours for permanent employees and identification of casual employees as shift workers. These are distinct issues and I deal with them separately. In doing so I would note that the AWU raised these issues as BOOT issues and not as matters that go to whether the Agreement was genuinely made.

Span of hours – permanent employees

[33] It is not contested that the span of ordinary hours provided for in the Agreement is a span of hours that could be entered into by ‘arrangement’ under clause 22.1 of the Award.

[34] It was put by the AWU that I could not be satisfied that employees would have entered into an arrangement under the Award to such a span of hours (the extended span) as appears in the Agreement. For this reason the AWU said that I should consider the Agreement span of hours against a non-altered span of hours under the Award.

[35] The AWU relied on:

b. A petition signed by (apparently) permanent employees from Corindi irrigation work group in which those employees say they would not agree to the extended span of hours; and

b. Demographic information provided by the Applicant as to the number of employees who voted for the Agreement and whether or not they were permanent employees.

[36] Prior to considering these submissions there are some things to note of clause 22.1 of the Agreement.

[37] Firstly the clause does not require the agreement of employees to change the span of hours. It does require that an ‘arrangement’ be entered into between the employees of the ‘section/s’ concerned and the employer. Whilst such a process might be similar to a facilitative provision where employee agreement is required, it is not the same.

[38] The word ‘arrangement’ is used in clause 22.1 as the means by which the span of hours might be changed. This should be considered in the context of the Award as a whole where the word ‘agreement’ is extensively used. It would be reasonable to assume, in such context, that an ‘arrangement’ is different to an ‘agreement’ such that it is not intended that there must be an agreement to vary the hours as provided.

[39] The AWU argument that the meaning attributed to ‘arrangement’ as found in the decision in Zabrdac and confirmed in John Lucas Hotel Management is not applicable in this case because the Award was made prior to the operation of the provision of the FW Act considered in Zabrdac is not a reasoned proposition. The decision in Zabrdac was based on a line of authority that, whist arising for the consideration of trade practices or taxation matters, extends well before the FW Act and is equally as applicable in this case.

[40] In Pullen v R & C Products Pty Ltd and Another 5 Marks J considered the meaning of the word ‘arrangement’ in the context of s.275 of the Industrial Relations Act 1991 (NSW). His Honour found that:

The meaning of “arrangement” was discussed by the former Industrial Commission in Court Session in Custom Credit Corporation Ltd v Goldsmith [1976] AR (NSW) 98. The usual meaning of “arrangement” was said to be one which is in the nature of a bargain, which involved a degree of understanding but which may not satisfy the legal requirements of certainty as to terms so as to amount to a contract, or indeed even an agreement.

[emphasis added]

[41] In Zabrdac I concluded:

[74] These decisions provide authority for the proposition that an arrangement, whilst not necessarily legally enforceable, requires:

•  That there be communication between the parties to the arrangement; and

•  That the parties must reach some understanding; and

•  That there is some expectation that each of the parties will behave in a particular way.

[75] An arrangement is not an expectation that a party will behave in a particular way and it cannot be contrived. It requires some substance.

[42] Beyond some concern as to the time at which this decision was made nothing of substance was put to suggest that the conclusion was erroneous or not applicable in the context of considering an award term.

[43] Applying the principles in Zabrdac in the context of clause 22.1 of the Award it is reasonable to conclude that the ‘arrangement’ with respect to hours of work would:

•  Be based on some communication between the employer and employees;

•  Involve an understanding of what was to occur with respect to hours;

•  Result in some expectation as to the hours.

[44] Clearly what is not required is that agreement be determined by some vote or ballot of employees.

[45] That said, it must be that there is some form of acknowledgement from the majority of employees in the section/s concerned to the proposed arrangement. If this was not required then the requirement that the arrangement be made with ‘the majority of employees’ makes no sense. It could only be known if the arrangement was with the majority of employees if the acknowledgement of those employees was known.

[46] The second thing that must be said of the capacity to extend the span of hours is that the Award does not specify or require that such a decision should be made on a discrete section basis but rather allows that such an arrangement may be entered into by a section or sections of the enterprise.

[47] Third, there is nothing in the Award provision that provides employees with any unilateral right to exit from any arrangement entered into to extend the span of hours under the Award.

[48] Clause 22.1 of the Award enables the employer and groups of employees in clusters smaller than the business (i.e. at the ‘section’ level) to agree to changes as to how working hours are arranged. It appears reasonable that there may be circumstances where an employer could only contemplate a change to the spread of hours or days of the week on which ordinary hours are worked if workers at a level greater than a single section entered into the arrangement and in these circumstances consideration at the level of “section/s” (plural) would be appropriate. The section or sections included in such an arrangement would depend on the business and how work flows within that business. This would naturally provide greater flexibility for the employer to enter into arrangements that meet its needs and could well extend to employees across all sections of the business concerned.

[49] For this reason alone the views of one group of employees as to whether they would support an arrangement that altered the spread of hours to that proposed in the Agreement if it was put to them under the Award is not determinative if it is intended that the arrangement apply across multiple sections. Clearly, in this case, the Applicant wishes a change in the span of hours across all parts of the business. If this exercise was undertaken under the Award the Corindi irrigators would not alone have the right to opt out if the majority of employees determined to enter into the arrangement, nor by their opposition alone could they scuttle the proposal. For this reason the views of the Corindi group are not relevant to my determination.

[50] The Applicant in this matter clearly wanted an altered arrangement of hours to apply across all sections of the business. I do not (and cannot) know how all sections, collectively, of the business might view this arrangement if it was put to them under the Award expect through the vote for the Agreement (to the extent I can read anything from that).

[51] Based on the demographic information contained in the Form F17 the AWU said that only 144 full-time and part-time employees could have voted on the Agreement (1331 employees were covered by the Agreement at the time it was made and 1187 casual employees were employed by the Applicant at the time so, at best, 144 permanent employees voted on the Agreement). Of those eligible to vote (1331) 818 did vote and, of these, 615 voted to approve the Agreement. On these figures the AWU said it could not be certain that any of the 144 non-casual employees actually voted on the Agreement.

[52] It is true that I do not know if or how any employee engaged in the voting process and it is not appropriate that I should. An Agreement is made when the majority of employees who vote, vote in favour of the Agreement. This is the only thing that can be taken from the vote – nothing more and nothing less. Not knowing who did or did not vote for an agreement however does not mean the Agreement cannot properly be considered under the FW Act.

[53] Ultimately the decision I need to make is if the Agreement passes the BOOT. In this respect I am satisfied that the extended span of hours is an arrangement of hours of work contemplated by the Award. To the extent that the Agreement was approved by the majority of employees then I am satisfied that the span of hours proposed in the Agreement was agreed to by the majority of employees although, whether this is the reason or one of the reasons the Agreement was supported cannot be known. It cannot be known if employees approved the Agreement because of the span of hours or they were prepared to accept the span of hours because of other benefits they saw in the Agreement but this is true of every provision in the Agreement.

[54] It is not necessary for me to know how any employee or group of employees might view the span of hours in the Agreement or if they would enter into such an arrangement under the Award. The protection afforded in the Agreement making process to a particular class of employees (or any employee) is if they would be better off overall under the Agreement compared to the Award and that is what I will now consider.

[55] The hours of work proposed under the Agreement including the span of hours during which ordinary hours may be worked is available, by arrangement, under the Award.

[56] If the Agreement was not in place and employees were engaged pursuant to the Award the Applicant would seek to enter into an arrangement under the Award to reflect the extended hours proposed in the Agreement. It is not disputed that if no arrangement was entered into under the Award full-time and part-time employees working in the ‘extended’ hours would be entitled to some penalties. It cannot be accepted, however, that the only way the Applicant could have work performed in the ‘extended’ hours would be to utilise full-time and part-time employees and pay them appropriate penalties.

[57] The Applicant said, and I accept, that if full-time and part-time employees did not enter into the extended span arrangement under the Award, it would make alternative operational arrangements to have work performed either in the ‘extended’ hours by casual employees, not seek to extend hours or arrange work in some other manner. Payment of penalties is not the only option available to the Applicant.

[58] That the ordinary hours under the Agreement is an arrangement that can be entered into, and taking into account the real flexibilities available to the Applicant under the Award, suggests that the extended span of hours within which ordinary time can be worked is not a BOOT consideration. Employees will not be worse off under the Agreement although they may not be better off in this regard. To this extent, in determining if employees are better off overall under the Agreement (which is a greater consideration than just the hours of work provisions) the hours of work is neutral in that it neither adds nor detracts from the consideration.

Casual employees and shift work

[59] Clause 22 of the Award (set out above) provides for ordinary hours of work for full-time and part-time employees other than shiftworkers (clause 22.1); casual employees other than shiftworkers (clause 22.2) and shiftworkers (clause 22.3).

[60] The ordinary hours for casual employees cannot exceed 304 hours over an eight week period. The hours can be worked at any time. Hours worked between 5.00 am and 8.30 pm are paid at the minimum hourly wage plus 25% casual loading. Hours worked between 8.31 pm and 4.59 am attract an additional loading of 15% for those hours.

[61] The hours for shiftworkers cannot exceed 152 hours over four weeks. An afternoon shift is one finishing after 6.00 pm and at or before midnight and a night shift is a shift finishing after midnight and at or before 8.00 am. Shiftworkers receive a 15% loading for all hours whilst on an afternoon or night shift.

[62] The Award apparently provides two means by which a casual employee might be paid for any hours worked after 6.00pm:

•  If deemed a shiftworker the total hours are subject to a payment of ‘15% more than the ordinary rates’;

•  If not a shift worker, the hours up to and including 8.30pm are paid at the minimum rate plus 25% casual loading and hours from 8.31pm have an additional 15% paid.

[63] Nothing in the Award determines when a casual employee might be considered a shiftworker for the purposes of clause 22.3. Further, there is a clear conflict between what would be paid to a casual employee under clause 22.2 and clause 22.3. However, clause 22.2 of the Award appears to provide a comprehensive pay arrangement for casual employees 24 hours per day, seven days per week. It would therefore be possible to engage a casual employee on any pattern of hours (subject only to the 304 hour limitation) and pay the employee under clause 22.2 even if the pattern of hours was not dissimilar to what was being worked by employees under clause 22.3.

[64] There is nothing in the Award that suggests that a casual employee who worked a shift finishing after midnight could only be engaged for those hours as a shift worker subject to clause 22.3 of the Award. Whilst this may seem unusual it is nothing more than a reflection that clause 22.2 covers all hours of the day and all days of the week.

[65] Whilst the AWU submitted that the Agreement does not allow for the engagement of casual employees as shiftworkers I am not convinced that this is contrary to the Award which does provide for the engagement of casual employees as other than shiftworkers working hours not dissimilar to shiftworkers and provides compensation based on the time worked. That the Applicant chooses not to utilise one pattern of work for casual employees (shift work) that is available under the Award does not create a BOOT issue.

[66] For this reason I do not consider that there is BOOT issue with respect to casual employees and shift work.

Conclusion

[67] For the reasons given above I am satisfied that the ordinary hours of work provided for in the Agreement and the casual employees and shift do not raise any BOOT issues.

[68] I do acknowledge that a number of benefits under the Agreement are contingent – for example, the labour flexibility is only accessible if an employee is subject to redeployment and some allowances are restricted. However, to not consider these and the improved junior rates or pay progression improvements because they are ‘contingent’ is wrong.

[69] In Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care 6 the Full Bench of the Commission said:

[27] Section 193 provides than an enterprise agreement passes the better off overall test if the Commission is satisfied, as at the test time, that each award covered employee and each prospective award covered employee would be better off overall if the agreement applied to the employee than if the relevant award applied to the employee. Although the test time is the date the application was lodged, the Commission is required to conduct an overall comparison, for each existing and prospective employee, of agreement and award conditions. This necessarily requires a consideration of the rates of pay under the agreement and the award that apply to existing and prospective award covered employees assessed ‘as at the test time’. A ‘point-in-time test’ is necessary because the award benchmark may change over the nominal life of the agreement,

although its base rate of pay would always be the relevant minimum because of s 206. To our mind, this is the anchoring work of the ‘test-time’. The BOOT analysis occurs at this time, taking account of all that is known at this time, including all of the terms of the agreement that will apply over its nominal life. In our view, the ‘test-time’ does not confine the BOOT analysis to provisions of an agreement that are applicable only at its inception; employees must be better off overall under the agreement, not just better off at ‘test-time’.

[70] Keeping this observation of the Full Bench in mind it would be wrong to dismiss the junior rates of pay or the pay progression provisions as not providing some benefit to employees. They will provide some benefit over the life of the Agreement.

Undertakings

[71] The Applicant has provided draft written undertakings. A copy of the draft undertakings is at Annexure A to this decision. I have sought the views of the AWU as an employee bargaining representative on the undertakings. The AWU has indicated that the proposed undertakings are acceptable to it. No other bargaining representative has commented on the undertakings.

[72] I have considered the proposed undertakings and am satisfied that the undertakings, if formally given by the Applicant, will not cause financial detriment to any employee covered by the Agreement and that the proposed undertakings will not result in substantial changes to the Agreement.

[73] I have also taken into account the information provided by the Applicant on those provisions of the Agreement that are better than the Award provision; those benefits not conferred by the Award and those Award provisions not conferred by the Agreement. On the basis of the totality of the information before me I am satisfied that employees will be better off overall under the Agreement than the Award.

[74] Pursuant to subsection 190(3) of the Act, I will accept the proposed Undertakings once signed and returned.

Conclusion

[75] Subject to provision of the signed undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement will be approved and appropriate matters noted in a further decision when the signed Undertakings are received.

COMMISSIONER

Appearances:

S. Masters, Edge Legal, for the Applicant.

A. Sage for The Australian Workers’ Union.

Hearing details:

2019.

Melbourne, Hobart and Sydney (video hearing):

November 28.

Printed by authority of the Commonwealth Government Printer

<PR714944>

Annexure A

 1   MA000028.

 2   [2011] FWA 4492.

 3   [2013] FWCFB 1198.

 4   See Application by Mitolo Group Pty Ltd [2014] FWC 7682.

 5 (1994) 60 IR 183 cited in Zabrdac.

 6   [2019] FWCFB 1716.