Insurance Australia Group Services Pty Limited, Insurance Manufacturers of Australia Pty Limited T/A IAG
[2021] FWC 1720
•30 MARCH 2021
| [2021] FWC 1720 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Insurance Australia Group Services Pty Limited, Insurance Manufacturers of Australia Pty Limited T/A IAG
(AG2020/4195)
DEPUTY PRESIDENT CROSS | SYDNEY, 30 MARCH 2021 |
Application for approval of the IAG Enterprise Agreement 2020.
[1] An application has been made for the approval of an enterprise agreement known as the IAG Enterprise Agreement 2020 (the Agreement). The application was made by Insurance Australia Group Services Pty Limited and Insurance Manufacturers of Australia Pty Limited (IAG) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).
[2] The Agreement will cover 8455 employees of IAG. On 22 December 2020, a Form F16 Application for approval of the Agreement was made and filed, together with a Form F17 Statutory Declaration.
[3] On 23 December 2020, the Finance Sector Union (the FSU), filed a Form F18 that advised that it supported the approval of the Agreement by the Fair Work Commission (the Commission), but disagreed with the Applicant’s statements regarding Clauses 3.1.3, 3.7.2 and 3.7.4 of the Agreement.
[4] On 28 January 2021, correspondence was sent from my Chambers identifying a number of issues that I sought be addressed before approval of the Agreement. On 4 February 2021, IAG provided a draft undertaking (the Draft Undertaking) which clarified that the Agreement is to be read and interpreted in conjunction with the NES, and where there is inconsistency between the Proposed Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.
[5] On 8 February 2021, the FSU wrote to the Commission. The FSU’s correspondence outlined that the Draft Undertaking resolved all issues but for issues arising from Clause 3.1.3(b) and 3.1.7(b)of the Agreement. That correspondence stated in part:
“The FSU would therefore like to reiterate the concerns and comments made in our Form F18 that an employee would need to work more than 50 hours per week before being entitled to any overtime pay by virtue of clauses 3.1.3(b) and 3.7.2(b), which we believe falls below the ordinary hours provision in the Award, being an average of 38 per week; and is also inconsistent with s 62(1) of the Fair Work Act.
Further, for the sake of clarity, the FSU’s position is not that we believe that employees under the agreement should not be required to work additional hours beyond 38 hours per week, the concern by the Union is that under the agreement additional hours worked by full time employees, up to 50 hours per week, will only be paid at single, or ordinary rates.
In relation to IAG’s reference to other enterprise agreements that the FSU is covered by, the Union does not feel it is appropriate or necessary to provide any comment or response about other agreements that IAG has not been a party to aside from noting that IAG was not privy to any of the discussions held between the bargaining parties or the Commission during the approval process for any of those other agreements.
The FSU notes IAG’s proposed undertaking to address the other concerns raised by the Deputy President and does not oppose the proposed undertaking.”
The Outstanding Issues
[6] The Draft Undertaking resolved all issues between the Commission and the parties but for issues regarding the better of overall test (BOOT), and ordinary hours of work per week as compared to the NES (the Outstanding Issues).
[7] On Monday 15 February 2021, the Commission issued the following directions to deal with the Outstanding Issues:
1. The Applicant to prepare and file any submissions by 4:00pm Wednesday 17 February 2021
2. The FSU to prepare and file any submissions by 4:00pm Friday 19 February 2021
3. The Applicant to prepare and file any submissions in reply by 4:00pm Monday 22 February 2021.
The IAG Submission
[8] IAG submits that the Agreement passes the BOOT, and accordingly Commission should approve the Agreement with the Draft Undertaking only. IAG submits the FSU’s interpretation of the BFI Award is incorrect and is also inconsistent with the FSU’s position on previous IAG enterprise agreements.
[9] Pursuant to section 186(2)(d) of the Act, the Commission must be satisfied that an enterprise agreement passes the BOOT before it can approve an enterprise agreement. Section 193 of the Act sets out the BOOT and relevantly states:
“(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 award applied to the employee.”
[10] It is well established that the BOOT requires a global analysis and not a line by line comparison with the applicable modern award.1 As stated by a Full Bench of the Commission:
“The BOOT, as the name implies requires an overall assessment to be made. This requires the identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement”’2
[11] IAG submitted that an agreement may pass the BOOT even if some award benefits have been reduced, as long as overall those reductions are more than offset by the benefits of the agreement.3
[12] IAG submitted that when read together, the unambiguous meaning of clauses 3.1.3 and 3.7.2(b) of the Agreement is that an employee can work up to a maximum of 10 hours per day, 50 hours per week or 150 hours over a four-week cycle as ordinary hours (paid at base rates), after which time overtime rates will be payable. Importantly, IAG employees will receive overtime if they are required to work more than 150 hours over their standard four-week work cycle.
[13] IAG submitted that the provision for an employee to work up to 50 ordinary hours per week in the Agreement is not less beneficial than the BFI Award, because the BFI Award does not prescribe any maximum number of ordinary hours that can be worked per week (or per day for that matter) before overtime applies. It simply provides that ordinary hours will be an average of 38 per week over a work cycle of one to four weeks. As a result, the imposition of a limit on weekly ordinary hours under the Agreement is more beneficial to employees than the BFI Award, which has no limit.
[14] The BFI Award provides for an employee to be engaged to work an average of 38 ordinary hours per week,4 which may be worked as 152 ordinary hours within a work cycle of four weeks.5 In contrast, the Agreement provides that ordinary hours will not exceed 150 ordinary hours over a four-week work cycle, which is an average of 37.5 hours per week. Therefore, the Agreement is more beneficial than the BFI Award in this respect.
[15] IAG submitted that to the extent clauses 3.1.3(b) and 3.7.2(b) are construed as being less beneficial than the BFI Award (and IAG does not consider this is the case), that detriment has been adequately accommodated for through other provisions in the Agreement that are more beneficial, for the purposes of the BOOT.
[16] On other BOOT considerations, IAG noted that numerous terms in the Agreement which are more beneficial than the BFI Award and a number of other terms in the Agreement which provide benefits to employees that they would not otherwise receive under the BFI Award.
[17] Finally, IAG noted that IAG has an obligation under clause 4.5.2 of the Agreement to conduct a reconciliation every three months to ensure that employees receive pay and employment related benefits that are overall no less than the payments they would have been entitled to had they been paid in accordance with the BFI Award.
[18] IAG also submitted that a number of predecessor agreements (including the current enterprise agreement) have contained an ordinary hours of work provision in the same terms as that in the Agreement. Therefore, clauses 3.1.3 and 3.7.2(b) are not new provisions, rather they have effectively been ‘rolled over’ from previous agreements. The relevant clauses are set out as follows:
(1) IAG Enterprise Agreement 2016 (PR715900): clauses 4.1.3 and 4.7.2(b) of the Current Agreement are in identical terms to clauses 3.1.3 and 3.7.3(b) (respectively) of the Agreement.
(2) Insurance Australia Group Enterprise Agreement 2012 (PR519125): clauses 4.1.3 and 4.7.2(b) of the 2012 Agreement are in identical terms to clauses 3.1.3 and 3.7.2(b) (respectively) of the Agreement.
(3) Insurance Australia Group (IAG) Enterprise Agreement 2003 (PR942092): clause 4.2.4 of the 2003 Agreement is in identical terms to clause 3.1.3 of the Agreement (except that clause 4.2.4 includes the words ‘i.e. hours paid at single time’ as clarification on what is meant by ‘Ordinary Hours’). Clause 4.8.2(a) of the 2003 Agreement is in materially the same terms as clause 3.7.2(b) of the Agreement.
[19] IAG notes that the presence of clauses 3.1.3 and 3.7.2(b) of the Agreement in identical, or materially the same terms, in predecessor IAG Agreements, seemingly did not give rise to any issues regarding the BOOT (or predecessor tests), nor did it give rise to any previous objection by the FSU. Accordingly, IAG submits that the terms of clause 3.1.3 and 3.7.2(b) in the Agreement should not be an obstacle to approving the Agreement under section 186 of the FW Act.
[20] IAG also submitted that there have been other enterprise agreements with provisions that are in materially the same (or similar) terms as clause 3.1.3(b) and which have been approved by the Commission.6 Each of these agreements was underpinned by the BFI Award.
The FSU Submission
[21] The FSU submitted that the Agreement in its current form is not capable of being approved because clauses 3.1.3(b) and 3.7.2(b) are:
(a) Less beneficial than the ordinary hours provision in the BFI Award; and
(b) Contrary to sections 62(1)(a) and 63(1)(a) of the Act.
(a) Agreement Ordinary Hours are Less Beneficial
[22] The FSU submitted that the meaning and application of the ordinary hours provision in the Agreement is confusing and designed to avoid paying overtime. The FSU noted that in the attachments to Form F17, IAG stated in Attachment A that ordinary hours under the agreement are less beneficial than under the Award, and then in Attachment C claimed that ordinary hours under the Agreement are more beneficial. The FSU agreed with IAG’s response in Attachment A that the ordinary hours provision under the Agreement is less beneficial when compared with the Award provision because it allows for employees to work up to 50 ordinary hours a week compared to an average of 38 hours under the Award.
[23] Clause 20.1 of the BFI Award provides that overtime is payable for ‘all time worked at the direction of the employer outside of ordinary hours of work prescribed by this award.’ The Award at clause 13.2 prescribes that ordinary hours of work will be ‘an average of 38 per week to be worked on one of the following bases:’
(a) 38 hours within a work cycle of one week;
(b) 76 hours within a work cycle of 2 weeks;
(c) 114 hours within a work cycle of 3 weeks; or
(d) 152 hours within a work cycle of 4 weeks.
[24] The FSU submitted that contrary to IAG’s submission that the “BFI Award does not prescribe any maximum number of ordinary hours that can be worked per week,” the BFI Award expressly provides that ordinary hours per week are an average of 38, which is also consistent with the maximum weekly hours provision at s.62 of the Act.
(b) Maximum Weekly and Ordinary Hours under the NES
[25] Section 62(1) of the Act relevantly provides:
(1) “An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee--38 hours; or
(b) for an employee who is not a full-time employee--the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.”
[26] Further, s.63 of the Act allows modern awards and enterprise agreements to provide for averaging of hours of work and is in the following terms:
(1) “A modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period. The average weekly hours over the period must not exceed:
(a) for a full-time employee - 38 hours; or
(b) for an employee who is not a full-time employee - the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
(2) The terms of a modern award or enterprise agreement may provide for average weekly hours that exceed the hours referred to in paragraph (1)(a) or (b) if the excess hours are reasonable for the purposes of subsection 62(1).”
[27] The FSU submitted that the ordinary hours provision in the Agreement is not reasonable for the purposes of the maximum weekly hours prescribed in s.62(1) because employees are not entitled to paid overtime for working up to 50 hours in a week.
[28] The FSU noted that the Full Bench in Roseneath Aged Care Centre v NSW Nurses & Midwives’ Association; Australian Nursing Federation - New South Wales Branch; Health Services Union - New South Wales Branch, 7 (Roseneath) decided that part time employees under that proposed agreement were a class of employees worse off under the agreement than the award. Under the agreement part time employees were only entitled to overtime if they worked more than their agreed hours until they reached 10 hours in a day, 38 hours in a week or 76 hours in a fortnight. The FSU submitted that the Full Bench found that the terms of the agreement were inconsistent with the relevant award and said that despite the other benefits provided for under the agreement part time employees would be worse off under the proposed agreement than under the award.
[29] In relation to IAG’s reference to the history of the ordinary hours provision and its inclusion in predecessor agreements in support of its submission that it should remain in the Agreement, the FSU submitted that the historical agreements should not influence or be relevant to the current enterprise agreement application. The Commission is required to examine and determine if the Agreement meets the current legislative requirements in the context of the working arrangements that are currently in place, rather than look to previous working arrangements and practices that may no longer be in place.
[30] As to other enterprise agreements that contain the same or similar ordinary hours provision referred to by IAG, the FSU reiterated that it was not appropriate or necessary to comment on those other enterprise agreements except to note that other enterprise agreements made with different employers, with different working arrangements and roster patterns, should have no relevance or bearing on the application at hand. In addition, enterprise agreements that may have been approved in the past are not an indicator that they necessarily passed the BOOT (see Coles Store Team Enterprise Agreement 2014-17).
[31] In conclusion, the FSU submitted:
(a) The Commission cannot be satisfied that it is able to approve the Agreement in its current form because the ordinary hours provision means that the Agreement does not pass the BOOT as required by s 186(2)(d) of the FW Act.
(b) In the alternative, if the Commission decides that the Agreement does pass the BOOT, the ordinary hours provision is inconsistent with s.63 of the FW Act, which means the Agreement is incapable of being approved in its current form.
(c) The FSU submitted that the proposed remedy involves IAG agreeing to undertake not to apply clauses 3.1.3(b) and 3.7.2(b) of the Agreement.
The IAG Reply
[32] IAG submitted that clauses 3.1.3(b) and 3.7.2(b) of the Agreement are not less beneficial than the BFI Award. While IAG agreed that some limited aspects of clause 3.1 (Ordinary Hours) in the Agreement are less beneficial than the BFI Award, this is principally confined to the span of hours at clause 3.1.2, which is not a contentious provision for the approval. Several aspects of clause 3.1 in the Agreement, however, are more beneficial, such as ordinary hours of 150 hours over a four-week period, rather than 152 hours under the BFI Award. Any less beneficial aspects are more than offset overall by the more beneficial terms provided by the Agreement. Importantly, the provisions identified as issues by the FSU (clauses 3.1.3(b) and 3.7.2(b)) are not less beneficial.
[33] IAG submitted that the potential for employees to work up to 50 ordinary hours in a week during a four-week work cycle is not less beneficial than the BFI Award. The BFI Award does not prescribe any maximum number of ordinary hours that can be worked per week (or per day), so the Agreement is more beneficial in this respect. IAG noted that the FSU does not object to the limit of 10 ordinary hours per day (clause 3.1.3(a)), despite the fact that the limit of 50 hours per week is simply the application of that daily limit over a week’s work.
[34] IAG submitted that under the BFI Award, ordinary hours can be an average of 38 per week over a work cycle of one to four weeks. That interpretation is reinforced by the definitions of full-time, part-time and casual employees, each of which are defined by the average hours worked by an employee. An employee who works a work cycle which is longer than one week, can work more than 38 hours in a particular week and not be entitled to overtime in respect of that work cycle provided that:
(a) the hours worked are within the span of ordinary hours in the BFI Award; and
(b) the number of ordinary hours worked over the work cycle is not more than: 76 hours within a two-week work cycle; 114 hours within a three-week work cycle; or 152 hours within a four-week work cycle.
[35] IAG submitted that Clauses 3.1.3(b) and 3.7.2(b) of the Agreement are not contrary to sections 62(1)(a) and 63(1)(a) of the Act. That is because the clauses in the Agreement and sections 62(1) and 63(1) of the Act deal with different matters:
(a) Clauses 3.1.3(b) and 3.7.2(b) of the Agreement set a limit on the maximum number of hours that can be treated as ‘Ordinary Hours’ (and therefore paid at single time) under the averaging of hours arrangements in the Agreement; and
(b) Sections 62(1) and 63(1) of the Act deal with the maximum weekly hours that an employer can request or require an employee to work (and do not concern the maximum number of ‘ordinary hours’ that may be worked).
[36] Reading clause 3.1.3 in the context of clause 3.1.1 and the definition of ‘Ordinary Hours,’ it is clear that this clause is concerned with how the hours worked by an employee in a week will be treated and therefore remunerated under the averaging of hours arrangements in the Agreement. It is not intended to affect the maximum number of hours that an employee may be requested or required to work for the purposes of sections 62(1) or 63(1) of the Act. The provisions in the Act concern the actual hours an employee may be requested or required to work, not what the employee is entitled to be paid for the hours they work.
[37] Nonetheless, section 63(1) permits an enterprise agreement (and an award) to include terms providing for the averaging of hours of work over a specified period provided that the average weekly hours (for full time employees) are not more than 38 hours. The Agreement meets this requirement as it limits the hours of work to 150 hours over a four-week cycle, being an average of 37.5 hours per week.
[38] Regarding the Full Bench decision in Roseneath, IAG submitted that decision is not relevant to the issue, which is whether the potential for employees to work up to 50 ordinary hours in a week during a four-week work cycle is less beneficial than the BFI Award or inconsistent with sections 62(1) and 63(1) of the FW Act.
[39] Finally, IAG noted that the Draft Undertaking clarifies that the Agreement is to be read and interpreted in conjunction with the NES, and where there is inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. As a result, the Draft Undertaking makes clear that clauses 3.1.3(b) and 3.7.2(b) cannot be applied or operate in a manner which is contrary to sections 62(1)(a) and 63(1)(a) of the Act.
[40] In conclusion, IAG submitted:
(a) If the Commission accepts IAG’s submissions and the terms of the Draft Undertaking, IAG submits that the Commission should be satisfied that the requirements in section 186(2)(d) of the FW Act have been met.
(b) On that basis, and given the absence of any other concerns with the Agreement, IAG submits that the Commission is required by section 186 of the FW Act to approve the Agreement.
(c) If the Commission is inclined to require IAG to provide an undertaking in the form proposed by the FSU, to the effect that clauses 3.1.3(b) and 3.7.2(b) of the Agreement will not be applied, IAG would appreciate the opportunity to make submissions in relation to the terms of any proposed undertaking in this regard.
Consideration
[41] The relevant provisions of the BFI Award are.
Clause 13.2
“Ordinary hours of work exclusive of meal breaks will be an average of 38 per week to be worked on one of the following bases:
(a) 38 hours within a work cycle of 1 week;
(b) 76 hours within a work cycle of 2 weeks;
(c) 114 hours within a work cycle of 3 weeks; or
(d) 152 hours within a work cycle of 4 weeks.
Week means any 5 consecutive days to be worked Monday to Friday, or 5 and a half consecutive days, Monday to Saturday.”
Clause 20 (overtime) of the BFI Award sets out the rate of pay for all overtime, being all time worked at the direction of the employer outside the ordinary hours of work prescribed by the BFI Award.
[42] The relevant provisions of the Agreement are.
Clause 1.2
“Ordinary Hours
Are hours that an Employee works that are paid at single time in accordance with clause 3.1.”
Clause 3.1.1
“The standard Ordinary Hours of work for full-time Employees are 150 hours per four week cycle. A small number of Employees currently work 140 hours per four week cycle as a full-time Employee under the arrangement in Annexure B of this Agreement.”
Clause 3.1.3
“Ordinary Hours will not exceed:
(a) 10 hours per day excluding meal breaks;
(b) 50 hours per week excluding meal breaks; or
(c) 150 hours per four week cycle excluding meal breaks.
This means that any combination of Ordinary Hours over a four week cycle cannot exceed 150 hours excluding meal breaks.”
Clause 3.7.2(b)
“…
(b) In the case of full-time Employees, overtime will apply for all time where the Employee is required to work by their Manager in excess of:
(i) an Employee’s ordinary Pattern of Hours; or
(ii) 10 hours per day; or
(iii) 50 hours per week; or
(iv) Ordinary Hours over a four week cycle.”
[43] As identified by the FSU in their submission, the two issues for consideration are that the Agreement in its current form is not capable of being approved because clauses 3.1.3(b) and 3.7.2(b) are:
(a) Less beneficial than the ordinary hours provision in the BFI Award; and
(b) Contrary to sections 62(1)(a) and 63(1)(a) of the Act.
(a) Agreement Ordinary Hours are Less Beneficial
[44] In terms of the BOOT, Clause 13.2 of the BFI Award allows for the averaging of 38 ordinary hours per week up to 152 hours in a four-week cycle. Clause 20.1 of the BFI Award does not contain a daily or weekly overtime trigger, therefore under the terms of the BFI Award an employee can work, for example, 50 hours per week without receiving overtime penalties, provided the work is performed within the ordinary span of hours at Clause 13.1. IAG is correct in submitting that employees are better off under the averaging system in the Agreement as overtime is paid after 150 hours in the four-week cycle rather than 152 hours per the Award.
[45] In support of its submissions, the FSU advanced an example work pattern that it said illustrated how the Agreement provisions are less beneficial when compared with the Award provision. That work pattern was as follows:
• Week 1 – 50 hours
• Week 2 – 50 hours
• Week 3 – 30 hours
• Week 4 – 20 hours
The FSU submitted that an employee could work the following pattern of hours and by virtue of clauses 3.1.3(b) and 3.7.2(b) not be entitled to overtime for the additional hours worked in excess of 37.5 in Week 1 and Week 2.
[46] I do not agree with the submission of the FSU that the work pattern example would result in employees not being better off than the Award as there is nothing at Clause 13.2 of the BFI Award that prohibits this type of averaging over the four-week cycle. It appears that the FSU is contending that if an employee works above 38 hours per week in any week of a work cycle that is longer than one week, then that employee is entitled to overtime under the BFI Award. I reject that interpretation. The BFI Award allows an employee to work up to 152 ordinary hours in a four-week work cycle, and there are no specific limits on the maximum number of ordinary hours that can be worked in a day or a week.
(b) Maximum Weekly and Ordinary Hours under the NES
[47] The NES at s.62(1)(a) provides that an employer must not request or require an employee to work more than 38 hours in a week unless the additional hours are reasonable. Sub-section 62(3) then outlines the factors to be taken into account in determining whether additional hours are reasonable or unreasonable. S.63 of the Act anticipates that an enterprise agreement may include terms providing for the averaging of hours over a specified period, however the note to s.63 provides:
“Note: Hours in excess of the hours referred to in paragraph (1)(a) or (b) that are worked in a week in accordance with averaging terms in a modern award or enterprise agreement (whether the terms comply with subsection (1) or (2)) will be treated as additional hours for the purposes of section 62. The averaging terms will be relevant in determining whether the additional hours are reasonable (see paragraph 62(3)(i)).”
[48] Whether the relevant clauses of the Agreement are contrary to the provisions of sections 62(1)(a) and 63(1)(a) of the Act is an issue of the application of the NES. I do not consider based upon one entirely hypothetical work pattern that clauses 3.1.3(b) and 3.7.2(b) can be impugned. It is clear that whatever work patterns are set pursuant to the Agreement will be subject to the application of the NES.
[49] In further recognition of the role of the NES, IAG has provided a NES precedence undertaking which I consider effectively resolves the ordinary hours issue. The Draft Undertaking includes the following:
“IAG undertakes that at all times during the nominal term of the Agreement, and until the Agreement is replaced, that the Agreement will operate on the basis that the following NES Precedence term is included as a term of the Agreement:
This Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.”
[50] The relevant decision for consideration in Roseneath was not the Full Bench decision referred to by the FSU, but the first instance decision of Gooley DP, 8 where the Deputy President observed:
[20] It is clear that the terms of the Agreement are not consistent with the Awards which both provide that an employee directed to work outside his or her agreed hours is paid overtime at overtime rates.
[21] If the second submission of the Applicant is intended to suggest that the very making of an enterprise agreement means that a provision, which could result in a part-time employee being directed to work outside of his or her agreed hours without the payment of overtime, is not less beneficial then I do not accept this submission.
[22] I also do not accept the submission that an enterprise agreement can be substituted for the individual employee’s agreement to vary his or her hours of work.
[23] The provisions in the Awards in relation to part-time employees are protective.
Roseneath is not applicable to the considerations in this matter. As identified above, there are no such inconsistencies between the BFI Award and the Agreement.
Conclusion
[51] Clauses 3.1.3(b) and 3.7.2(b) do not pose a BOOT issue as submitted by the FSU. Those clauses may pose an NES issue, however those issues will be determined pursuant to the NES as and when they arise. The Draft Undertaking reinforces the application of the NES.
[52] Subject to the provision of an undertaking in the form of the Draft Undertaking referred at paragraph [4] above, I would be satisfied that the relevant requirements of ss 186, 187, 188 and 190 of the Act concerning the application for approval have been met.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR728212>
1 BOC Limited [2019] FWCA 5544 at [9].
2 Re Armacell Australia Pty Ltd [2010] FWAFB 9985 at 41. See also CFMEU v TR Construction Services Pty Ltd[2017] FWCFB 1928 and Re AKN Pty Ltd (t/as Aitkin Crane Services) [2015] FWCFB 1833.
3 Re Australia Western Railroad Pty Ltd T/A ARG – A QR Company[2011] FWAA 8555 at [8].
4 Clause 13.2(a).
5 Clause 13.2(d)
6 See for example: Superpartners Enterprise Agreement 2016 (clause 3.1); Westpac Group Enterprise Agreement 2019 (clause 15.2); RACQ Group Enterprise Agreement 2019 – 2022 (clause 8.2); and Hostplus Pty Ltd Enterprise Agreement 2019 – 2021 (clause 9.2).
7 [2013] FWCFB 7430.
8 [2013] FWC 4969.
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