Redlea Citrus Pty Ltd

[2016] FWC 333

[2016] FWC 333

FAIR WORK COMMISSION

DECISION

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

Redlea Citrus Pty Ltd
(AG2015/6053)

G.J Shoobridge & J Shoobridge & P.K Shoobridge T/A John, Patricia and Gary Shoobridge
(AG2015/6513)

Novacott Downs Pty Ltd as trustee for The Roth Family Trust T/A Novacott Downs Pty Ltd
(AG2015/6761)

Agricultural industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 18 JANUARY 2016

Application for approval of the Redlea Citrus Pty Ltd Enterprise Agreement 2015; Shoobridge & Son Enterprise Agreement 2015; Novacott Downs Pty Ltd Enterprise Agreement 2015- Agreements do not pass the better off overall test (BOOT) -

1. BACKGROUND

[1] Redlea Citrus Pty Ltd; G.J Shoobridge & J Shoobridge & P.K Shoobridge T/A John, Patricia and Gary Shoobridge; and Novacott Downs Pyt Ltd as trustee for The Roth Family Trust T/A Novacott Downs Pty Ltd (the Applicants) apply in accordance with Part 2-4 of the Fair Work Act 2009 (the Act) for approval of:

● Redlea Citrus Pty Ltd Enterprise Agreement 2015 (the Redlea Agreement);
● Shoobridge & Son Enterprise Agreement 2015 (the Shoobridge Agreement);and
● Novacott Downs Pty Ltd Enterprise Agreement 2015 (the Novacott Agreement)

collectively, the Agreements.

[2] The Applicants are represented by Mr Waters of MRH Lawyers. The Agreements are in substantially identical terms and it is convenient to deal with them in a single Decision. On 24 November 2015, I caused correspondence to be forwarded to Mr Waters raising a number of concerns I had with the Agreements and in particular whether they passed the better off overall test (BOOT) as set out in s.193 of the Act. A response to those matters was provided by email from Mr Waters on 30 November and 7 December 2015.

[3] After considering the emailed response on behalf of the Applicants, I continue to have concerns about whether the Agreements pass the BOOT. The issues I have with the Agreements are considered below.

1. CONSIDERATION

1.1 Classifications and wages

[1] Each of the applications for approval was lodged with a Form F16 and a Form F17. The Form F17 Employer statutory declaration in support of approval filed with each Agreement states that for the purpose of the BOOT, the reference instrument that covers each of the employers and the employees covered by the Agreements is the Horticulture Award 2010 (the Award).

[2] In relation to translating classifications, each Form F17 states that none of the classifications in the Agreements are different from the classifications in the Award. It is further stated that the Agreements do not contain any terms or conditions of employment that are more beneficial than equivalent terms and conditions in the reference instruments and that the Agreements do not contain any terms that are less beneficial than equivalent terms and conditions in the reference instruments. Further it is stated that the Agreements do not confer any entitlements that are not conferred by the Award.

[3] The primary business of each of the Employers is said to be “Labour Hire” and it is stated that the Agreements will operate in Queensland. Each of the three Agreements provides for five levels of Horticultural Employees, and the classification definitions are consistent with those in the Award. The Novacott Agreement and the Shoobridge Agreement contain reference to levels 4 and 5 but do not prescribe wage rates for those levels. The Novacott Agreement states in Schedule 1 that it is not anticipated that employees will be engaged at level 4 or level 5 but if employees are engaged at those levels they will be paid at least the rates for those levels in the Award. The Shoobridge Agreement states at Schedule 2 that employees will not be engaged at those levels.

[4] These provisions are problematic given that both of these Agreements stand alone and displace the Award and neither of the Agreements contains classification definitions for levels 4 and 5. Further, in relation to the provision in the Shoobridge Agreement that employees will not be engaged at levels 4 or 5, under the Award employees are entitled to be paid and classified at the level that describe the work they are required to perform regardless of the level at which the employer states that they are engaged.

[5] It is also the case that the Agreements have wage rates which are essentially the same as those in the Award. This means that there is no capacity to offset any less beneficial terms or reductions in benefits that employees would be entitled to under the Award.

1.2 Confidentiality

[1] Clause 4 of each of the Agreements contains an identical provision in relation to Duty of Confidentiality as follows:

“4. Duty of Confidentiality

4.1 Employees will not at any time, whether or not employed by the Employer, use or disclose any confidential information without written permission, unless:

(a) Necessary to perform the Employee’s duties; or

(b) Ordered to disclose by a court, commission or tribunal.

4.2 The Employer considers that Confidential Information includes any information the Employee receives directly from the Employer, indirectly from the Employer, or from a client, as well as the matters defined as “Confidential Information” below:

4.3 ‘Confidential Information’ means all information belonging to the Employer including but not limited to information which:

(a) The Employer indicates is confidential;

(b) By its very nature might reasonably be understood to have been disclosed to the Employee in confidence;

(c) Would be of commercial value to a competitor;

(d) Relates to the Employer’s financial affairs including performance or profitability reports and margins;

(e) Relates to the Employer’s clients including lists of clients and their requirements;

(f) Relates to trade secrets, know-how, manufacture or development processes used in relation to the Employer’s products or services; or

(g) Is found in the Employer’s manuals or policies; and

(h) Is not trivial, obvious or available in the public domain [available in the public domain’ means available in a form such that no more than minimal research or effort is required to assemble the information in the form expressed in the Employer’s records in which it became known to the Employee while employed by the Employer).

4.4 Nothing in this clause or this Agreement makes this Agreement confidential information.”

[1] Confidentiality terms are not found in the Award. The terms impose obligations on employees that would not be imposed on them under the Award and which could only be imposed and enforced at common law. Further, the clauses expose employees to civil penalty provisions under the Act, if they breach the confidentiality term of the Agreement. Employees under the Award would have no such exposure. 1 The Form F17 Declarations filed by each employer do not indicate that any special effort was taken to explain such a novel provision, which has significant implications.

[2] In order to address my concerns about this clause the Applicant employers in each case offered undertakings that they would not refer to, apply or rely upon the relevant clause in each Agreement.

1.3 Hours of work and overtime

1.3.1 Casual Employees

[1] The Novacott Agreement and the Redlea Agreement provide for casual employment only and make no reference to full-time or part-time employment. All of the Agreements contain identical provisions in relation to casual employees to the effect that they are paid at a standard rate which is said to include a 25% casual loading. These rates are essentially the same as the casual rates in the Award.

[2] The ordinary hours of work for all employees are prescribed in all three Agreements as follows:

“11. Hours of Work

11.1 The number of hours worked by Employees shall be in accordance with the National Employment Standard. The Employer will endeavour to give extra hours to Employees as requested, within reason and within the limits of the law, and the Work Health and Safety Laws.

11.2 The minimum engagement for a casual employee shall be 2 hours”. 2

[3] The Novacott Agreement and the Redlea Agreement contain no provisions in relation to additional remuneration for casual employees working in excess of ordinary hours as defined in clause 11. The Shoobridge Agreement contains overtime provisions that apply only to Full-Time and Part-Time employees. These are discussed below.

[4] In relation to hours of work for casual employees, clause 10.4 of the Award provides as follows:

“10.4 Casual employment

(a) A casual employee is one engaged and paid as such. A casual employee’s ordinary hours of work are the lesser of an average of 38 hours per week or the hours required to be worked by the employer.

(b) For each hour worked, a casual employee will be paid no less than 1/38th of the minimum weekly rate of pay for an employee in that classification in clause 14—Minimum wages, plus a casual loading of 25%.

(c) The casual loading is paid instead of annual leave, personal/carer’s leave, notice of termination, redundancy benefits and the other entitlements of full-time or part-time employment provided for in this award.”

[5] Clause 10.4(a) refers to “ordinary hours”. By implication, any hours that are not within the meaning in clause 10.4(a) are not ordinary hours. Ordinary hours for a casual employee are the lesser of an “average of 38 hours per week” or the hours required to be worked by the employer. Thus the “average of 38 hours per week” is the maximum ordinary hours that can be worked by casual employees. The ordinary meaning of the term “average” is an amount obtained by dividing the total of given amounts by the number of amounts in the set.

[6] For the reasons I set out in an earlier Decision in Brockfield Enterprises Pty Ltd and Ors 3, to which I referred the Applicants’ representative in the present case, I am of the view that the ordinary meaning of clause 10.4(a) of the Award is that the employer must either require a casual employee to work less than an average of 38 hours per week or, where a casual employee works more than an average of 38 hours per week, the additional hours are not ordinary hours within the meaning in clause 10.4(a) of the Award. It is axiomatic that the employer must establish a period over which ordinary hours are to be averaged that meets one or the other of these requirements. Without such a period, the term “average” has no effect and the reference to “ordinary hours” is meaningless because there is no benchmark. Further, the language of clause 10.4(a) of the Award limits the ordinary hours of casual employees by requiring that ordinary hours are the lesser of the two options, rather than that ordinary hours of work for casual employees have no limit.

[7] I am also of the view that in order to comply with the requirements of clause 10.4(a) of the Award it is necessary that, as a matter of practical reality, the period set by the employer for the purpose of the averaging of hours must be a period in which it is possible to demonstrate that an average of 38 ordinary hours per week has been worked by the casual employee. An average can only be calculated when there is a total period which is defined in advance, and the employee works for part of that period and has the remainder of the period where work is not performed. It is difficult to envisage circumstances where a period of more than 12 months would be appropriate for the purpose of calculating average hours for casual employees under the Award.

[8] If casual employees are not entitled to overtime rates under the Awardthen it is arguable that it is not permissible that they work hours in excess of an average of 38 per week or lesser hours that may be set by the employer. This is because if an Award stipulates parameters in which employees are to work ordinary hours and then makes no provision for a penalty for work outside of those parameters, it is arguable that employees working outside the parameters are working in breach of the Award.

[9] In response to these matters, the Applicants submitted that a casual employee is not entitled to the overtime rates set out in Clause 24 of the Award and that it does not automatically follow that if time is not “ordinary” hours then it must be “overtime”. Clause 22.1(d) of the Award is a deeming clause that expressly deems that hours worked in excess of the ordinary hours for a full-time or part-time employee will be “overtime”. Clause 24 then goes on to set the rates for overtime. There is no equivalent deeming clause for casual employees working in excess of 38 hours per week.

[10] The Applicant further submitted that the absence of such a deeming clause reveals the intention of the drafters and that it is that the intention of the drafters of the Awardthat the rates set out in Clause 24 only apply where it is expressly deemed that the employee is working overtime. In support of this proposition the applicant sought to rely upon the information statements by the Fair Work Ombudsman confirming a similar interpretation. Those information statements contain the following:

“The ordinary hours of work and rostering provisions in the Horticulture Award 2010 (clause 22) apply only to full-time and part-time employees. They do not apply to casual employees nor do they apply to piecework employees even if they are engaged as full-time or part-time employees (clause 15.5).

Under the Horticulture Award 2010 there is no specific entitlement to overtime for casual employees as there is for full-time, part-time or shift worker employees to be either an average of 38 hours per week or the hours required to be worked by the employer whichever is less.

However employers should be aware that the award provides for ordinary hours of work for casual employees to be either an average of 38 hours per week or the hours required to be worked by the employer whichever is less”

[11] I note that this statement is not inconsistent with the proposition that casual employees are not permitted to work in excess of an average of 38 hours per week.

[12] It is submitted that whilst these information statements are not binding, it appears that their interpretation is identical to that contended for by the Applicants and may be persuasive. While maintaining their position in relation to this matter the Applicants offered the following undertaking in relation to calculation of ordinary hours of work for a casual employee if the Commission is not persuaded by their argument:

“A casual employee’s ordinary hours of work are the lesser of an average of 38 hours per week averaged over a period of 12 months, or the hours required to be worked by the employer. Other than these parameters there are no restrictions on the days and times that ordinary hours can be worked by casual employees.

For hours worked in excess of the average hours calculated as provided …above, casual employees are entitled to be paid overtime at a rate of 150% (inclusive of casual loading)”

[13] The second sentence of the first paragraph of this proposed undertaking appears to be inconsistent with the National Employment Standards and, in particular, s.62 of the Act in relation to maximum weekly hours.

1.3.2 Full-Time and Part-Time Employees

[1] The Shoobridge Agreement provides that employees will be engaged on a Full-Time, Part-Time or casual basis. The definition of Full-Time employee in clause 5.1 of the Shoobridge Agreement is: “an employee who is engaged to work full-time”. The definition of a Full-time employee found in clause 10.2 of the Award is: “…an employee who is engaged to work an average of 38 ordinary hours per week”.

[2] A Part-Time employee is defined under the Shoobridge Agreement as: “an employee who is engaged to work on average less than a Full-Time Employee” and “who receives on a pro rata basis, equivalent pay and conditions to those of Full-Time Employees who do the same kind of work.” Under clause 10.3 of the Award, a Part-time employee:

● is engaged to work an average of fewer than 38 hours per week;

● is paid 1/38^th of the minimum weekly rate of pay for the relevant Award classification;

● must be informed of their ordinary hours of work and starting and finishing times; and

● is entitled to be paid overtime for hours worked in excess of the mutually arranged hours.

[3] The Shoobridge Agreement contains the following provision for overtime for Full-Time and Part-Time employees only:

“11. OVERTIME – FULL TIME & PART TIME EMPLOYEES ONLY

11.1 Overtime will be deemed to be where:

(a) A Full Time or Part Time Employee works more than 152 hours in a four week period provided:

i. The ordinary hours will be worked between Monday and Saturday inclusive.
ii. 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.
iii. The ordinary hours will not exceed 12 per day.
iv. All time worked by Full-Time and Part-Time Employees in excess of the ordinary hours set out above will be deemed overtime.

11.2 Where the Employer demands Employees to work overtime, then such Employees shall be paid time and a half the Standard Hourly Rate except for work on a Sunday which will be double-time. During the Employers harvest period the first eight hours of overtime in a week may include five hours work on a Sunday at the rate of 150% but all Sunday work in excess of the eight overtime hour worked in the week, or in excess of five hours on a Sunday, will be paid at the rate of 200%.”

[4] The parameters of the ordinary working hours for Full-Time employees in clause 11.1 of the Shoobridge Agreement are generally consistent with the hours of work provisions of the Award. For Part-Time employees under the Shoobridge Agreement this is not the case. Unlike the Award there is no requirement under the Shoobridge Agreement for Part-Time employees to be informed about their ordinary hours of work and starting and finishing times. Part-time employees under the Shoobridge Agreement can work the same number of ordinary hours as full-time employees – up to 152 in a four week period – before being entitled to overtime. Under the Award, ordinary hours for a part-time employee are less than an average of 38 hours per week and Part-time employees are entitled to overtime payments for work in excess of their mutually arranged hours.

[5] Further, clause 11.1 of the Shoobridge Agreement does not explicitly state that overtime is defined as all time worked outside of or in excess of the parameters in clause 11.1. Overtime rates are only payable under the Shoobridge Agreement when the employer “demand” that Full-Time or Part-Time employees work hours that would otherwise be outside of their ordinary hours. There is no indication of what rate would be paid to employees working outside of what would otherwise be their ordinary hours as defined in clause 11.1 of the Shoobridge Agreement, in circumstances where the employer does not “demand” that they do so.

[6] This can be contrasted with clauses 22.1, and in particular clause 22.1(d) of the Award, which states that all time worked by Full-Time and Part-Time employees in excess of the ordinary hours shall be deemed to be overtime and clause 24.2 of the Award, which provides that the rate of pay for overtime is 150% except on Sunday where the rate is 200%. Overtime rates under the Award are payable when the time worked meets the definition of overtime, regardless of whether or not the employer “demands” that the time is worked.

[7] Notwithstanding this provision, it is submitted for the Applicant that the Shoobridge Agreement does not provide for voluntary hours of work, and that the decision in Brockfield predominantly deals with an agreement that does contain a voluntary hours of work provision.

11.1.1 Banking of hours

[8] The Redlea and the Novacott Agreements provide at clause 12, for the banking of hours in excess of 40 per week. Under the Agreements, banked hours may be used to top up hours to 40 per week or may be paid out with seven days’ notice. The Award provides for time off in lieu of overtime at clause 24. The Award provision requires that time off in lieu of overtime is taken within three weeks of accruing, unless the employer and the employee agree that it be taken at some other time.

[9] I sought clarification from the representative of the Applicants as to the relevance of the clause given that the Novacott Agreement and the Redlea Agreement only provide for casual employment and the Agreements do not contain any defined ordinary hours or hours or work limitations for casual employees. I also queried why hours in excess of 40 can be banked when ordinary hours for Full-Time and casual employees are an average of 38 per week.

[10] The Applicants’ representative submitted that the banking of hours clause is a clause inserted purely for the benefit of employees who wish to take up that option. Due to the peaks and troughs in this industry, employees may arrange their remuneration so that they have regular income. There is no benefit at all to the employer. The Applicants’ representative offered to provide an undertaking that banked hours must be taken within three weeks unless otherwise agreed.

11.1.2 Allowances

[11] I also raised concerns that the Agreement does not provide for a number of allowances that are found in the Award or the amounts of the allowances in the Agreement are below the corresponding allowances in the Award. For example, the Leading Hand Allowance that is provided for in the Agreement appears to be a lower amount than 115% of the standard rate (Level 2 under the Award) for the week in which leading hand duties are performed.

[12] The Applicants’ representative argued that a number of allowances were not included in the Agreements because the Applicants do not operate their businesses in a manner where the allowances apply. The Applicants’ representative conceded that without the Allowances being provided for in the Agreement it could be perceived that employees would be disadvantaged if they were required to perform work that would otherwise attract the payment of an allowance under the Award.

[13] With respect to Allowances, the Applicants offered an undertaking to pay employees no less than the following allowances where those allowances would be payable under the Award:

“Leading hand allowance

A leading hand will be paid a leading hand allowance based upon the following: In charge of:	% of the standard rate per week
2 to 6 employees	115%
7 to 10 employees	134%
11 to 20 employees	191%
More than 20 employees	240%

Wet work allowance

An employee who, on any one day, is required to work in a wet place must be paid an amount of 10% of the standard rate for each hour that they are required to work in the wet place, unless provided with adequate protection. A wet place will mean a place where the clothing of the employee becomes saturated or a place where the employee has to stand in water or slush so that the employee’s feet become wet.

Tool and equipment allowance

Where the employer requires an employee to supply their own tools and equipment, the employer must reimburse the employee for the cost of supplying such tools and equipment. The provisions of this clause do not apply where the tools and equipment are paid for by the employer.

First aid allowance

An employee who has undertaken a first aid course and who is the holder of a current recognised first aid qualification such as a certificate from the St John Ambulance or similar body must be paid an allowance, per week, equal to 51% of the standard rate per week if they are appointed by the employer to perform first aid duty.

Travelling allowance

Where an employee is required to travel from one place to another, the time occupied in travelling will be counted as time worked and paid for as such. Where an employee is compelled by their duties to spend the night away from home or the property at which the employee is employed (whichever is the employee’s normal place of sleeping during employment) the employer will reimburse the employee for the demonstrable cost of suitable accommodation. The provisions of this clause will not apply where the employer provides the employee with suitable accommodation free of charge.”

12 APPROACH TO THE APPLICATION OF THE BOOT

[14] The BOOT (as was the NDT before it) is applied on a global basis rather than line by line. A provision of a proposed agreement that when considered alone, may be less beneficial than a corresponding provision in a relevant modern award, will not result in the proposed agreement failing the BOOT if there are other more beneficial provisions in the proposed agreement which offset the less beneficial provision such that employees are better of overall. For example, a modern award that is a reference instrument for the purposes of applying the BOOT to a proposed agreement may provide that overtime is payable at the rate of time and a-half for the first three hours and double time thereafter. The proposed agreement may provide that a flat hourly rate that is less than the overtime rates in the relevant modern award, is payable for all hours worked including those that would be ordinary hours and those that would be treated as overtime hours under the modern award.

[15] Under this scenario, employees may be better off overall if they are paid the loaded rate for all time worked and if their total remuneration is more than it would have been if the award rates, including overtime and other penalty payments or loadings, had applied. It may also be relevant to a consideration of whether a proposed agreement passes the BOOT in those circumstances that the flat hourly rate feeds into other entitlements under the proposed agreement such as the rate at which employees are paid for leave. Employees may volunteer to work overtime in this scenario and be paid a flat hourly rate for such overtime, and be better off overall than they would have been under the relevant award.

[16] There have been numerous decisions of the Commission, including Full Bench Decisions, where the consistent view has been expressed that in applying the BOOT test – and previously the no disadvantage test (NDT) – consideration is given to a comparison between the terms of the relevant award and the terms of the agreement. Where the award does not distinguish between hours worked on a voluntary basis and those directed by the employer – and most awards do not make such a distinction – the analysis does not involve consideration of the wishes of the employees or that they may have volunteered to work at the particular time for ordinary rates. Similarly, the comparison does not involve consideration of the fact that employees will not be offered overtime work if they do not agree to do that work at ordinary rates. As Senior Deputy President Harrison observed in Mondex Group Pty Ltd, 4 earlier Full Bench Decisions have held that:

“The application of the NDT did not involve an analysis of matters or considerations other than those between the enterprise agreement and the comparable terms and conditions of the award. It was not to the point that if employees had to be paid at overtime rates the employer may not offer them additional hours.”

[32] Her Honour went on to hold that the same principles apply to a consideration of whether an enterprise agreement passes the BOOT. These principles have been applied to voluntary hours provisions however described.

[17] An agreement term which provides that employees will only be paid overtime rates for work that the employer “demands” or otherwise directs that they perform, is in my view, a voluntary hours provision. The Award does not define overtime solely on the basis that it is time that an employee is directed to work. Overtime under the Award is time that is worked outside of the employee’s ordinary working hours. Under the relevant Award in the present case (and most if not all modern awards) while it is implicit that overtime is time that an employee is required to work, an employer cannot accept the benefit of work at times when an employee is entitled to payment at overtime rates, and avoid paying overtime rates for that work on the basis that the employer has not “demanded” or otherwise directed that the employee work.

[18] In my view, clause 11.2 of the Shoobridge Agreement is a voluntary hours provision in another guise, and I do not accept the submission to the contrary.

13 CONCLUSIONS

[19] It is axiomatic that in order for an Agreement to pass the BOOT, the Commission must be satisfied that each Award covered employee would be better off if covered by the Agreement, than the employee would be if the relevant modern award applied to the employee.

[20] The three Agreements subject of this Decision do not pass the BOOT. I can see no benefits for employees under any of the Agreements that they would not be entitled to under the Award, and there are a number of Award benefits which appear to have been removed. The Agreements contain wage rates that are the same as those in the Award. Other provisions of the Agreements are either the same as those in the Award or remove Award entitlements. It is arguable that if the Applicant employers gave undertakings to apply the Award provisions that the Agreements purport to remove, that prospective award covered employees would not be better off but rather, would be in the same position as they would be in if the Award applied.

[21] The Shoobridge Agreement appears to be nothing more than a vehicle to implement a voluntary hours provision. The principles relating to voluntary hours are clear and they apply whenever a relevant award or reference instrument for the purpose of the BOOT contains a penalty payment or an additional payment, however described, for work performed in particular circumstances, or at particular times of the day, or on particular days of the week, or on public holidays, or outside hours that are the ordinary working hours for an employee or employees. Quite simply, it is irrelevant for the purposes of the BOOT that an employee has volunteered, chosen or agreed to work hours that would attract a penalty payment, loading, allowance or additional payment under a relevant modern award or reference instrument.

[22] It is equally irrelevant that the employee is working those hours in circumstances where the employer has not “demanded” that the employee work. If the employer obtains the benefit of the hours worked by an employee, and those hours are worked at times when the employee is entitled to be paid at overtime rates under an Award, then the Agreement must contain benefits that offset the loss of overtime payments so that the employee is better off overall under the Agreement. The use of the term “where an employer demands employees to work overtime” in the Shoobridge Agreement, is in my view, an attempt to disguise a voluntary hours provision. The clause potentially removes overtime payments for Full-Time and Part-Time employees under the Agreement and does not contain any offsetting benefit.

[23] The case law in relation to such provisions could not be clearer. The Applicant in the application for approval of the Shoobridge Agreement, which contains a voluntary hours clause, is represented by a Solicitor who should be familiar with the many cases where Agreements containing such provisions have been dealt with. I repeat my endorsement of the views of Deputy President Bartel in MP Resources Pty Ltd 5that repeated attempts to gain approval of agreements in terms that have previously been rejected by the Commission or modified by undertakings, is at best careless and at worst, lacks integrity.

[24] The Applicants in each matter are required to advise within seven days of the date of release of this Decision, whether they wish to pursue the approval of the Agreements, and if so, they will be listed for Hearing. The Applicants may wish to provide further undertakings to address my concerns in light of these reasons. However, given the concerns that I hold with the Agreements, any proposed undertakings may give rise to the very real issue that the undertakings that would be required to address these matters would result in significant changes to the Agreement, contrary to the requirement in s. 190(3)(b). If no advice is received in the required time, I will consider that the applications are withdrawn.

DEPUTY PRESIDENT

 1   Smith v Nephew [2010] FWA 2465.

 2   Clause 11 of the Novacott Agreement and the Redlea Agreement and clause 10 of the Shoobridge Agreement.

 3   [2015] FWC 7863.

 4   [2015] FWC 1148.

 5   [2015] FWC 6820.

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