Funky Mexican Mandurah Pty Ltd T/A Funky Mexican Cantina Mandurah

[2018] FWC 4015

[2018] FWC 4015

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Funky Mexican Mandurah Pty Ltd T/A Funky Mexican Cantina Mandurah
(AG2017/4652)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 JULY 2018

Application for approval of the Funky Mexican Mandurah Pty Ltd - Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Funky Mexican Mandurah Pty Ltd – Enterprise Agreement 2017 (the Agreement). The application was made by Funky Mexican Mandurah Pty Ltd T/A Funky Mexican Cantina Mandurah (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] On 9 March 2018 the Fair Work Commission’s (the Commission) Member Support Research Team sent an email to the Applicant’s representative setting out the Commission’s preliminary views regarding the Agreement. That email read as follows:

“I write in relation to the abovementioned application, which has been allocated to Deputy President Kovacic for consideration.

The Deputy President has reviewed the file and notes the following:

Agreement

1. Clause 4.1.1 of the agreement have [sic] been corrected by hand. The Deputy President enquires whether this was the version of the agreement voted on by employees.

National Employment Standards (NES)

2. Clause 6.2 of the agreement, which provides for abandonment of employment, may remove an employee’s entitlement to notice of termination as provided by the NES. You may wish to provide an undertaking in relation to this issue.

Unauthorised deduction

3. Clause 6.1.7 of the agreement allows the employer to make a deduction from monies due to an employee if an employee fails to give the notice required on resignation. This provision may be contrary to section 324 of the Act and may be unenforceable.

Genuine agreement

4. In view of the number of agreement provisions which appear to be less advantageous to employees when compared to the corresponding modern Award, the Deputy President seeks further information about how the terms of the agreement and their effect were explained to employees so he can be satisfied that the requirements of the Act in relation to genuine agreement have been met.

Better off overall test (BOOT)

Based on the Commission’s pay rate comparison, the agreement appears to offer rates of pay between 11.21% - 16.69% above the Restaurant Industry Award 2010 (the Award) rates of pay. Please find the Commission’s pay rate comparison attached. The rates of pay do not appear to be high enough to compensate employees for the following entitlements that are less beneficial than the Award:

5. The agreement does not offer shift penalties, weekend penalties, public holiday penalties, annual leave loading or a number of allowance. Clause 1.2 of the agreement states that the hourly rates of pay are inclusive of any applicable Award weekend or public holiday penalties and allowances and well as any entitlement to annual leave loading. The rates of pay do not appear to be high enough to compensate employees for these entitlements and employees do not appear to be better of overall.

6. Clause 4.1.1(b) of the agreement offers full time employees a minimum engagement of 3 hours per shift. Clause 31.2(a) of the Award provides a minimum of 6 hours per day.

7. Clauses 4.1.1(b) and 4.1.2(b) of the agreement allow full time and part time employees to work up to 12 hours per shift. Clause 31.2(a) of the Award provides for a maximum of 11 and a half hours on any one day.

8. Clauses 4.1.1(f) and 4.1.2(e) state that the minimum break between the end of one shift on a day and the commencement of another shift the following day must be 8 hours. Clause 31.2(d) of the Award states that an employee must be given a minimum break of 10 hours between the finish of ordinary hours of work on one day and the commencement of ordinary hours of work on the next day.

9. Clause 4.1.2(b) of the agreement offers part time employees a minimum engagement of 2 hours per shift. Clause 12.5(b) of the Award states that a part time employee must not be rostered to work for less than 3 hours in a day.

10. The agreement offers an overtime rate of 150% for the first two hours and 200% thereafter. The Award provides a Saturday overtime penalty of 175% for the first 2 hours and 200% thereafter and a Sunday overtime penalty of 200%.

11. Clause 4.3.4 of the agreement states that the roster may be changed on giving at least 3 days’ notice or such lesser period as mutually agreed. In the case of emergency, unforeseen operations contingency, absenteeism, or sickness the employer is required to give the employee no notice. Clause 31.6 of the Award states that the roster will be alterable by mutual consent at any time or by amendment of the roster on seven days’ notice.

12. Clause 4.4.1 of the agreement states that employees are entitled to an unpaid meal break of 30 minutes if they work more than 6 consecutive hours in a shift. Clause 32.1 of the Award states that if an employee, including a casual employee, is required to work for five or more hours in a day the employee must be given an unpaid meal break.

13. Clause 4.4.2 of the agreement states that the unpaid meal break will be taken at a time designated by the employer. Clause 32.1 of the Award provides that the break must be given no earlier than one hour after starting work and no later than six hours after starting work.

14. Clause 5.1.5 of the agreement states that an employer may require an employee to take accrued annual leave where the employer has provided the employee at least 4 weeks’ notice in writing and where the employee has accrued more than 4 weeks annual leave. Clauses 35.4 and 35.5 of the Award provide that an employee has an excessive leave accrual if the employee has accrued more than 8 weeks’ paid annual leave (or 10 weeks’ paid annual leave for a shiftworker) and a direction by an employer must not require the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months, after the direction is given.

15. Clause 2.3 of the agreement states that training conducted outside of an employees rostered hours will be paid at the ordinary rate of pay. It appears that under the Award employees undertaking training outside of rostered hours would be entitled to overtime.

Based on the abovementioned less beneficial entitlements, employees may not be better off overall under the agreement than under the Award. You may wish to provide undertakings or submissions.

If undertakings are to be provided, please ensure they are signed by the Employer. The Deputy President has also asked that you seek the views of any bargaining representatives regarding any proposed undertaking. Any objections to the proposed undertakings should be raised with the Commission prior to the approval of the agreement.

A response to the above is requested as soon as possible, but no later than close of business Friday 16 March 2018.”

[3] The Applicant’s representative responded on 21 March 2018 and proffered several undertakings to address the Commission’s concerns.

[4] The Commission again wrote to the Applicant’s representative on 17 April 2018 seeking further information on some issues and/or reiterating some of the concerns raised in the Commission’s initial correspondence. Among other things, the Commission’s correspondence stated:

“8. In light of the above issues and the numerous undertakings required to resolve the issues, the Deputy President seeks your views on whether the undertakings proffered will result in substantial changes to the agreement.”

[5] The Applicant’s representative responded on 24 April 2018 and on 25 April 2018 providing revised undertakings. In respect of the issue of whether the undertakings previously proffered would result in substantial changes to the Agreement, the Applicant’s representative responded as follows:

“All the changes are of a significant financial benefit of the Employees and the changes do not result in ‘substantial changes to the Agreement’ being changes to 8 out of 111 sub-clauses and sub-sub-clauses of the Agreement and 2 out of 32 clauses have been amended. It is our view taking the ordinary and natural meaning of the word ‘substantial’ which we submit means ‘greater rather than less’ (see Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173).” (Emphasis as per original)

[6] As to the revised undertakings provided by the Applicant on 25 April 2018, they included the following undertaking:

“2. That clause 4.3.1 the Agreement will be treated [as] of no effect, and the parties will instead observe and comply with the following new clause 4.3.1:

The Employer will roster all Employees based on their availability, business needs, hours of operation, level of responsibility, skill level, holidays and illness. Provided that the Employer will not roster staff more than 30% of their hours for a roster period on a weekend.”

[7] Further correspondence ensued on 11 May 2018 (from the Commission) and 25 May 2018 (to the Commission). The Commission’s correspondence of 11 May 2018 included the following, with the Applicant’s response of 25 May 2018 included in bold text:

“3. Regarding your undertakings increasing the rates of pay and replacing clause 4.3.1 of the agreement, this does not appear to ensure that employees are better off overall under the agreement. Based on the Commission’s pay rate comparison the undertaking results in rates of pay (excluding apprentice rates of pay) of between 17.70% - 21.62% above the Award rates of pay. The below model is based on a full time Level 1 Adult working 30% of their ordinary hours on Sunday and 5 public holiday per annum (10 hours per day):

Agreement Ordinary Rate	$22.16	Award Ordinary Rate	$18.81
Hours	Loading	weekly total	Hours	Loading	weekly total
Mon-Fri	25.63846	100%	$568.15	Mon-Fri	25.63846	100%	$482.26
Sun	11.4	100%	$252.62	Sun	11.4	150%	$321.65
Public Holiday	0.961538	100%	$21.31	Public Holiday	0.961538	225%	$40.69
Allowances	Amount	Value	Allowances	Amount	Value
Annual Leave	Yes	$64.78	Annual Leave	Yes	$54.98
Leave Loading	No	$0.00	Leave Loading	Yes	$9.62
Totals	38.00	Hrs	$906.86	Totals	38.00	Hrs	$909.21
Agreement Total Weekly Rate			$906.86	Model Summary
Award Total Weekly Rate			$909.21
Dollar / Actual Percentage Difference			-$2.35	The Dollar / Actual Percentage Difference identifies the modelled difference between the agreement and the award in dollar terms and as a percentage.
			0.26%
Agreement Percentage Increase Required			0.26%	The Agreement Percentage Increase Required is the amount the agreement rate would need to be increased by to satisfy the BOOT under this modelling.

The Deputy President invites you to provide further information regarding how employees would be better off overall under the agreement.

Noted and see attached signed under [sic] that indicates the rates of pay have been increased 0.5% which should address this concern.

4. Regarding the undertaking replacing clause 4.3.1 of the agreement, the Deputy President invites your comment on the possibility that the undertaking amounts to substantial change or might cause detriment to employees given the limitation it places on weekend work as opposed to no such limitation in the agreement voted on by employees.

The employer has been rostered staff within this restriction so we submit that there is no detriment to the staff in fact this restriction will protect existing and future staff to ensure this rostering pattern does not change.”

[8] The undertaking attached to the above correspondence in respect of clause 4.3.1 of the Agreement was unaltered from that provided on 25 April 2018 (see paragraph [6] above).

[9] On 7 June the Commission wrote to the Applicant in the following terms:

“I write in relation to the abovementioned application and further to your email below.

The Deputy President has indicated that he intends to list this matter for a hearing to deal with the remaining unresolved issues, the main issue being whether the undertaking regarding rosters involves a substantial change and/or is detrimental to employees.

The Deputy President’s chambers will contact you regarding scheduling.”

[10] A telephone hearing was subsequently held on 21 June 2018. At the hearing, Mr Chris Agnew appeared with permission for the Applicant together with Mr Manish Gupta, the Applicant’s Director. In advance of that hearing, the Applicant’s representative provided both written submissions and revised undertakings to the Commission.

[11] For the reasons set out below, I am unable to accept the undertaking proffered in respect of clause 4.3.1 of the Agreement and therefore am not satisfied that the Agreement passes the better off overall test (the BOOT). Accordingly the Agreement cannot be approved and the application will be dismissed.

The Applicant’s submissions

[12] The Applicant submitted that Undertaking 2 (see paragraph [19] below) was not intended to restrict or limit the number of hours an employee is to be rostered on or work on a weekend or on a given Saturday or Sunday. On the contrary, the Applicant stated, the undertaking was solely intended to address any concerns which the Commission may have in relation to whether or not the Agreement passes the BOOT test by ensuring the maximum number of hours to be worked or rostered on a weekend before employees’ conditions reverted to the penalties in the relevant award, i.e. the Restaurant Industry Award 2010 1 (the Award).

[13] The Applicant further submitted that the undertaking would increase wages and provide protection to those employees who are rostered or work in excess of the limit imposed and reiterated that it is not intended to restrict the rostering of employees on weekends. As such, the Applicant posited that the undertaking would not cause financial detriment to any employee covered by the Agreement. The Applicant also highlighted that similar undertakings had previously been accepted by the Commission in respect of the Burger Urge Enterprise Agreement 2015 2 and the Chocolate Vanilla Pty Ltd Enterprise Agreement 20163.

[14] In summary, the Applicant contended that Undertaking 2 did not result in substantial change to the Agreement nor was it a financial detriment to any of the employees who voted on the proposed Agreement.

[15] At the hearing, the Applicant’s representative, Mr Agnew, indicated that as stated in the response to Question 2.3 in the Form F17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (other than a greenfields agreement) on 25 August 2017 he and Mr Gupta met with employees. Mr Agnew stated that at that meeting he explained the terms of the Agreement to employees, adding that he explicitly recalled explaining to employees about rostering. Specifically, he said that he indicated that it was not the Applicant’s intention to have employees work every weekend. Mr Agnew acknowledged that he did not make any explicit reference to the 30 per cent limitation reflected in Undertaking 2, though he contended that he was certainly making employees aware that the Applicant was going to change the way employees were rostered.

[16] Also at the hearing Mr Gupta stated that the Applicant rosters staff so that they work 80 per cent of their rostered hours Monday to Friday, with the remaining 20 per cent of their rostered hours worked on weekend. Mr Gupta further stated among other things that:

•  employees do not work every weekend, adding that they get every second weekend off; and

•  when employees work weekends they are rostered for either the Saturday or the Sunday but not both days.

[17] The Applicant concluded by reiterating its submission that Undertaking 2 was not intended to be a limitation but rather a parameter put in place to protect employees if they worked beyond the proportion of weekend hours specified in the undertaking.

The statutory framework

[18] Section 190 of the Act which deals with the issue of undertakings provides that:

190 FWC may approve an enterprise agreement with undertakings

Application of this section

(1) This section applies if:

(a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and
(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings

(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.

Undertakings

(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:

(a) cause financial detriment to any employee covered by the agreement; or

(b) result in substantial changes to the agreement.

…” (Underlining added)

The undertakings proffered

[19] The revised undertakings forwarded to the Commission on 19 June 2017 by the Applicant’s representative are as follows:

“The parties to the Funky Mexican Mandurah Pty Ltd – Enterprise Agreement 2017 (AG 2017/4652) (“the Agreement”) undertake in accordance with the provisions of section 190 of the Fair Work Act 2009 (Cth) the following:

1. The hourly rates of pay in clause 3.2.1 of the Agreement will be of no effect, and the parties will instead observe and comply with the following new clause 3.2.1:

3.2.1 What are the rates of pay for the above Work Levels?

The hourly rate of pay to be paid to all Employees is as follows:

WORK LEVEL HOURLY RATES OF PAY FROM THE FIRST FULL PAY PERIOD 7 DAYS AFTER APPROVAL OF THE AGREEMENT BY THE FAIR WORK COMMISSION

WORK LEVEL	FULL-TIME/PART-TIME HOURLY RATE	CASUAL HOURLY RATE
INTRODUCTORY Adult 19 years 18 years 17 years 16 years and under	21.65 18.39 15.15 12.98 10.82	27.05 22.99 18.93 16.23 13.53
LEVEL 1 Adult 19 years 18 years 17 years 16 years and under	22.27 18.92 15.59 13.37 11.13	27.84 23.66 19.49 16.70 13.91
LEVEL 2 Adult 19 years 18 years 17 years 16 years and under	23.12 19.65 16.18 13.87 11.56	28.89 24.56 20.23 17.35 14.44
LEVEL 3	24.70	30.87
LEVEL 4	25.20	31.50

2. That clause 4.3.1 the Agreement will be treated of no effect, and the parties will instead observe and comply with the following new clause 4.3.1:

The Employer will roster all Employees based on their availability, business needs, hours of operation, level of responsibility, skill level, holidays and illness. Provided that the Employer will not roster staff more than 30% of their hours for a roster period on a weekend. Should an Employee work outside of this restriction they will be paid the relevant Award penalties plus 1%.

3. That the Employer will not rely on clause 6.2 Abandonment of Employment and will treat it as being of no effect.

4. That clause 4.1.1 of the Agreement will be treated as being of no effect, and the parties will instead observe and comply with the following new clause 4.1.1:

(a) 38 hours per week which can be averaged over a 2, 3 or 4 week period;

(b) A minimum of 6 hours per shift and a maximum of 11.5 hours per shift;

(c) All ordinary time worked to be within a span of 2 hours per day;

(d) 8 rostered days off per 4 week cycle;

(e) A maximum of 10 consecutive days may be worked with up to 4 rostered days off;

(f) The minimum break between the end of one shift on a day and the commencement of another shift on the following day must be 10 hours; and

(g) Broken shifts may be worked.

5. That clause 4.1.2 of the Agreement will be treated as being of no effect, and the parties will instead observe and comply with the following new clause 4.1.2:

4.1.2 Hours of work - Part-time Employees

The hours of work for a part-time Employee will be agreed on engagement (the agreed pattern of hours) and may only be varied by agreement in writing in signed by the Employee and the Employer. Any hours worked outside of the agreed hours will regarded as overtime and paid in accordance with clause 4.2 of this Agreement. Further this agreed pattern of hours will be implemented within the following parameters:

(a) A minimum of 4 hours per week and up to a maximum of 37.5 hours which can be averaged over a 2, 3 or 4 week period;

(b) A minimum of 3 hours per shift and a maximum of 11.5 hours per shift. Provided that an employee and employer may agree in writing to work a minimum shift of 2 hours if there is a serious downturn in business during a shift period;

(c) All ordinary time worked to be within a span of 12 hours per day;

(d) A maximum of 10 consecutive days may be worked with up to 4 non-working days;

(e) The minimum break between the end of one shift on a day and the commencement of another shift on the following day must be 10 hours; and

(f) Broken shifts may be worked.

Any hours worked outside the above arrangement or the agreed pattern of hours will be paid as overtime in accordance with clause 4.2 of the Agreement.

6. That clause 4.2.2 of the Agreement will be treated as being of no effect, and the parties will instead observe and comply with the following new clause 4.2.2:

4.2.2 Overtime Penalties

Overtime worked will be paid as follows:

Monday to Saturday

Overtime worked between Monday and Saturday will be paid the rate of 50% in addition to the Employees ordinary rate of pay for the first 2 hours and 100% in addition to the Employees ordinary rate of pay for all overtime hours worked thereafter;

Sunday

Overtime worked on a Sunday will be paid at the rate of 100% in addition to the Employees ordinary rate of pay for all overtime hours worked.

Public Holiday

Full-time/Part-time Employees

Overtime worked by a full-time/part-time Employee on a public holiday will be paid at the [rate] of 150% in addition to the full-time/part-time Employees ordinary rate of pay for all hours worked.

Casual Employees

Overtime worked by a casual Employee on a public holiday will paid at the rate of 175% in addition to the casual Employees ordinary rate of pay for all overtime hours worked.

7. That clause 2.3 of the Agreement will be treated as being of no effect, and the parties will instead observe and comply with the following new clause 2.3:

2.3 TRAINING

The Employer will pay the Employee at their hourly rate of pay if the Employer requires that an Employee to undertake a period of training either during their rostered hours and at overtime rates as set out in clause 4.2 if required to do so outside of their rostered hours.

8. That clause 4.3.4 of the Agreement will be treated as being of no effect, and the parties will instead observe and comply with the following new clause 4.3.4:

4.3.4 Change of roster

Rosters may be changed either before or during a roster cycle on giving you at least seven (7) days’ notice or such lesser period as mutually agreed between the Employee and the Employer.

9. That clause 4.4.1 of the Agreement will be treated as being of no effect, and the parties will instead observe and comply with the following new clause 4.4.1:

4.4.1 Meal Break

All Employees are entitled to an unpaid meal break of 30 minutes if they work more than 5 consecutive hours in a shift. Provided that the unpaid break must be rostered no earlier than one hour after starting work and no later than six hours after starting work.

10. That clause 5.1.5 of the Agreement will be treated as being of no effect, and the parties will instead observe and comply with the following new clause 5.1.5:

5.1.5 Employer may require an Employee take Accrued Annual Leave

The Employer can direct an Employee take paid annual leave if:

(a) The Employer and an Employee cannot agree when the Employee’s paid annual leave is to be taken; and

(b) The Employer has provided the Employee at least 8 weeks’ notice in writing to take the paid annual leave; and

(c) The Employee has accrued more than 8 weeks paid annual leave at the time of the direction is given; and

(d) The Employer can only direct an Employee to take a maximum of 2 weeks paid annual leave.”

Consideration of the issues

[20] The issue of whether undertakings resulted in substantial changes to an agreement was considered by the Full Bench in Construction, Forestry, Mining and Energy Union v KAEFER Integrated Services Pty Ltd 4 (Kaefer). The relevant part of the Full Bench’s decision is set out below:

“Ground 2: substantial undertakings

[38] The CFMEU’s second ground of appeal contended that the Commissioner erred in accepting undertakings that resulted in substantial changes to the Agreement. Section 190(3) of the FW Act provides that the Commission may only accept a written undertaking if it is satisfied that the effect of accepting it is “not likely to cause financial detriment” to any employee covered by the agreement, or “result in substantial changes to the agreement”.

[39] The changes brought about by the undertaking provided by Kaefer remove, rather than cause financial detriment to employees. However, the CFMEU contends that the undertakings resulted in significant changes to the Agreement, including by replacing several allowances and the minimum ordinary hourly rates of pay, and inserting clauses related to apprentice rates. The CFMEU refers to the decision in Perth Access Scaffolding Pty Ltd, in which it was found that the significant number of undertakings provided by the employer had resulted in the agreement bearing no resemblance to the instrument on which employees had voted. The Commissioner found that the essential character of the agreement in question was that it would exclude the award, and that employeeswould instead receive a small margin above the award rate. The Commissioner found that this essential character would have been changed by accepting the numerous undertakings.

[40] In our view, simply increasing the quantum of various benefits will not ordinarily result in “substantial changes” for the purposes of s 190(3). It seems to us that the legislative concern is to avoid imposing on employees arrangements that they have not approved; employees are not likely to object to higher monetary amounts. The position might be more complex in relation to the reintroduction through undertakings of award-based benefits that were otherwise excluded by the agreement, if this were to have a significant bearing on working arrangements. However, this does not arise in the present matter.

[41] Section 190(3) 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 employees. In considering the application of s 190(3), each case will turn on its own circumstances. However, in the present case, we do not consider that the undertakings provided to date have resulted in substantial changes.” (Endnotes not included, underlining added)

[21] Undertaking 2 relates to clause 4.3.1 of the Agreement. The clause voted on by employees provides as follows:

“4.3.1 Rosters

The employer will roster all Employees based on your initial availability, business needs, hours of operation, level of responsibility, skill level, holidays, and illness.”

[22] However, Undertaking 2 provides inter alia that “the Employer will not roster staff more than 30% of their hours for a roster period on a weekend.” While I note that the Agreement provides a loaded rate of pay which applies to all hours worked, the limitation imposed by the proposed undertaking may impact negatively on employees depending on their available hours. For instance, an employee whose availability is predominantly on weekends may be disadvantaged as a result of the undertaking. In that regard, I note that Mr Gupta declared in the Form F17 that the Applicant employees 23 part-time employees and 3 casual employees. As such, I am not satisfied based on the material before the Commission that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement.

[23] More particularly, there is no evidence before the Commission that rostering was canvassed in the explanation of the terms of the Agreement, and the effect of those terms given to employees. While I note Mr Agnew’s submissions that rostering was raised, as previously mentioned he acknowledged that he did not make any explicit reference to the 30 per cent limitation reflected in Undertaking 2. Similarly, there is no evidence to substantiate Mr Gupta’s claims regarding the basis on which employees are rostered. I consider those claims to be somewhat self-serving and contrived in the circumstances. Further, if Mr Gupta’s claims are correct, it begs the question as to why that approach was not reflected in the Agreement voted on by employees.

[24] Drawing on the language in Kaefer, I consider that Undertaking 2 imposes an arrangement on employees that they have not approved and as a result would result in substantial change to the Agreement.

[25] Accordingly consistent with s.193(3) of the Act the undertaking cannot be accepted by the Commission. Consequently, I am not satisfied that the Agreement passes the BOOT and therefore the Agreement cannot be approved. While I note the Applicant’s contention that the last sentence of Undertaking 2 acts as a parameter put in place to protect employees if they worked beyond the proportion of weekend hours specified in the undertaking, conversely the parameter also acts as a disincentive to roster employees outside the parameter because of the increased costs that flow from doing so. As such, I do not consider that the parameter diminishes in any meaningful way the rostering limitation imposed by Undertaking 2.

[26] Finally, with regard to the other undertakings proffered by the Applicant, again drawing on the language in Kaefer those undertakings in my view either increase the quantum of benefits payable to employees or enhance the conditions under which they are employed. As a result, I do not consider that those undertakings cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

Conclusion

[27] For all the above reasons, I am unable to accept the undertaking proffered in respect of clause 4.3.1 of the Agreement and therefore I am not satisfied that the Agreement passes the BOOT. Accordingly the Agreement cannot be approved and the application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

C. Agnew for the Applicant

Telephone hearing:

2018

Canberra, Brisbane and Perth

June 21

Printed by authority of the Commonwealth Government Printer

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 1   MA000119

 2   AE415346 – see also [2015] FWCA 5729

 3   AE418750 – see also [2016] FWCA 2684

 4   [2017] FWCFB 5630