Shop, Distributive and Allied Employees Association v Fantastic Furniture Pty Ltd T/A Fantastic Furniture
[2020] FWCFB 3570
•8 JULY 2020
| [2020] FWCFB 3570 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Shop, Distributive and Allied Employees Association
v
Fantastic Furniture Pty Ltd T/A Fantastic Furniture
(C2020/901)
VICE PRESIDENT CATANZARITI | SYDNEY, 8 JULY 2020 |
Appeal against decision [2020] FWCA 699 of Deputy President Masson at Melbourne on 11 February 2020 in matter number AG2019/3437 – better off overall test – permission to appeal granted – appeal dismissed.
Introduction
[1] The Shop Distributive and Allied Employees’ Association (SDA/Appellant) has brought an appeal under s 604 of the Fair Work Act 2009 (FW Act) against a decision of Deputy President Masson made on 11 February 2020 1 (Approval Decision) to approve the Fantastic Furniture Enterprise Agreement 2019 (Agreement).
[2] The application for approval of the Agreement was made by Fantastic Furniture Pty Ltd (Fantastic Furniture/Respondent). The SDA was a bargaining representative for the Agreement and objected to its approval in the proceedings before the Deputy President.
[3] The Approval Decision was preceded by an interim decision issued on 4 February 2020 2 which dealt with concerns held by the Fair Work Commission (Commission) and the objections of the SDA (Interim Decision).
[4] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may be made only with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission may otherwise be granted on discretionary grounds.
[5] The SDA’s Notice of Appeal contends that the Deputy President erred in approving the Agreement. Although set out as two grounds of appeal, in substance there was only one. Read together the grounds contended that the Deputy President erred in concluding that the Agreement passed the better off overall test (BOOT). The SDA contended that “because of this error, the Agreement ought never have been approved or at least not approved in the absence of relevant curative undertakings proffered by Fantastic Furniture.” 3
[6] In the Notice of Appeal and before us, the BOOT concerns identified by the SDA were confined to three issues:
a) Rest Break Penalty Payment;
b) 19 day month – lost RDO; and
c) Toilet cleaning.
[7] The BOOT issues were elaborated upon in the SDA’s written submissions and in oral argument before us. Essentially, each BOOT issue was advanced as a separate ground of appeal.
[8] For the purposes of assessing the BOOT issues, the underlying modern awards against which the BOOT is to be conducted are the General Retail Industry Award 2010 (Retail Award) and the Storage Services and Wholesale Award 2010 (Storage Award).
[9] The appeal was heard by the Full Bench on 22 April 2020 in Sydney by telephone having regard to COVID-19 restrictions. Mr D Bruno of counsel appeared for the Appellant and Mr D Mahendra of counsel appeared for the Respondent. We granted permission for the parties to be legally represented, having found the requirements of s 596 of the FW Act were satisfied.
Background
[10] Fantastic Furniture is a furniture retailer, operating in a number of states and territories. Prior to the Agreement the terms and conditions of its employees were covered by either the:
a) Fantastic Furniture Pty Ltd Collective Agreement 2009; 4 or
b) Fantastic Furniture Enterprise Agreement Victoria, Tasmania, South Australia and Western Australia 2009. 5
[11] Bargaining for the Agreement commenced on 18 June 2019. In addition to the SDA, there were 17 individual bargaining representatives.
[12] Fantastic Furniture made the Agreement with its employees to be covered by it on 2 September 2019 when 68.3% of employees who voted, voted in favour of it. 6 The application for approval of the Agreement was made on 12 September 2019.
[13] On 18 September 2019 the SDA opposed the approval of the Agreement. The SDA asserted that the Agreement “contains clauses that are worse than the General Retail Industry Award and the Storage Services and Wholesale Award.”
[14] In its administrative assessment of the Agreement the Commission also identified BOOT issues in the context of the rates of pay in the Agreement being equal to or marginally above those contained in the modern awards.
[15] On 8 November 2019 Fantastic Furniture proffered undertakings. On 13 November 2019 the SDA contested the adequacy of these proposed undertakings.
[16] On 6 January 2020 the Deputy President issued a summary of issues, 7 which were:
a) Rest Break Penalty Payment issue was Item 15;
b) 19 day month – lost RDO issue was Item 28; and
c) Toilet cleaning issue was Item 34.
[17] On 13 January 2020 the Deputy President conducted a determinative conference. The Deputy President and the representatives of the Fantastic Furniture and the SDA progressed through the issues one by one and exchanged their views.
[18] On 16 January 2020 the Deputy President wrote to Fantastic Furniture and the SDA identifying his preliminary views on the matters canvassed on 13 January 2019. On 21 January 2020 Fantastic Furniture filed an Outline of Submissions Regarding Undertakings. 8 On 28 January 2020 the SDA filed its submissions in reply.9
[19] On 4 February 2020 the Deputy President issued the Interim Decision. On 5 February 2020 Fantastic Furniture filed further consolidated undertakings. On 10 February 2020 the SDA filed submissions in response. 10
[20] On 11 February 2020 the Deputy President issued the Approval Decision. The Agreement was to operate from 18 February 2020.
[21] However, on 20 February 2020 the presiding member of this Full Bench ordered 11 that both the Interim Decision and Approval Decision be stayed pending the hearing and determination of this appeal.
Legislation
[22] Section 186(2)(d) of the FW Act provides that the Commission “must be satisfied that … the agreement passes the better off overall test”. Section 193 prescribes what is necessary to pass the BOOT. If the Commission is concerned that an agreement does not pass the BOOT, s.190 allows the Commission to approve an agreement if it is satisfied that an undertaking meets the BOOT concern. Section 190(3) provides that the effect of accepting the undertaking must not cause financial detriment to any employee and must not result in substantial changes to the agreement.
[23] In CFMMEU v Hays Specialist Recruitment (Australia) 12 the Full Bench held that,
[19] Whether the Commission is satisfied that an employee is better off overall under an agreement and under the relevant award requires an evaluative assessment after consideration of the provisions of the award and the agreement, including the respects in which each may be more beneficial or less beneficial to the employee. As the High Court noted in Aldi Foods Pty Ltd v SDAEA 13 this kind of assessment has been described in other contexts as “a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations”, involving “individual choice or discretion as to which there may well be differences of opinion by different minds”.
[24] We adopt that reasoning.
[25] In the Interim Decision the Deputy President noted that:
“[12] …. Importantly for the purpose of BOOT consideration, the base rates of pay for a number of on-site retail classifications are equivalent to the relevant Retail Award base rates of pay. The wage rate margin between the Agreement and relevant award base rates range between 0-8% and penalty rate provisions under the Agreement are largely aligned with the relevant award provisions.
[13] In displacing the Retail Award and Storage Awards, terms and conditions of employment within the Agreement reflect some of the underpinning award conditions, have some benefits that are more beneficial and are silent or less beneficial than a significant number of relevant award conditions. To address those identified deficiencies which prompted concerns from both the Commission and SDA, the Applicant proposed a set of undertakings…”
[26] That is to say, because the rates of pay in the Agreement are so close to those in the modern awards (for some categories they are the same as contained in the modern awards), the Deputy President was indicating that, a finding that the Agreement contains terms less beneficial to those in the modern awards, may cause the Agreement to not pass the BOOT (unless there was an undertaking to cure the detriment).
[27] Fantastic Furniture provided undertakings (Annexure A to the Agreement). In the Approval Decision the Deputy President was satisfied that:
a) “[15] …the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.”
b) [16] … the requirements of s.186 … have been met”.
[28] Clearly, having accepted the undertakings proffered by Fantastic Furniture, the Deputy President was satisfied that the Agreement passed the BOOT. We are satisfied that the Deputy President made his assessment having considered the Agreement overall (inclusive of the undertakings). He did not, in assessing the BOOT, undertake a line-by-line assessment. To do so would have resulted in the Deputy President falling into error. What is apparent on a fair reading of the Interim Decision together with the Approval Decision is that the Deputy President conducted the weighing up exercise required by the BOOT. As will be evident below the Deputy President identified contested dimensions of the BOOT and determined the same. On balance the Deputy President was satisfied that the Agreement (inclusive of the undertakings) passed the BOOT.
Ground of appeal 1: Rest Break Penalty Payment
[29] The first ground of appeal concerns the operation of clause 31.2 of the Retail Award compared with the operation of clause 5.8 of the Agreement. The SDA contends that the Deputy President failed to interpret clause 31.2 of the Retail Award correctly and, consequently, failed to find that clause 5.8 of the Agreement was less beneficial than the Retail Award.
[30] Clause 31.2 of the Retail Award provides that:
31.2 Breaks between work periods
(a) All employees will be granted a 12 hour rest period between the completion of work on one day and the commencement of work on the next day. Work includes any reasonable additional hours or overtime.
(b) Where an employee recommences work without having had 12 hours off work then the employee will be paid at double the rate they would be entitled to until such time as they are released from duty for a period of 12 consecutive hours off work without loss of pay for ordinary time hours occurring during the period of such absence.
(c) By agreement between an employer and an employee or employees the period of 12 hours may be reduced to not less than 10 hours.
[31] Clause 5.8 of the Agreement provides that:
5.8. All Employees will be granted a 10 hour rest period between the completion of work on 1 day and the commencement of work on the next day. Where an Employee recommences work without having had 10 hours off work then the Employee will be paid as follows until such time as they are released from duty for a period of 10 consecutive hours off work, and will not suffer any loss of pay for any rostered hours which occur during the period of such absence:
Employment type | Rate of pay |
Permanent Employees | 200% of the Base Rate of Pay |
Casual Employees | 225% of the Base Rate of Pay (including casual loading) |
[32] The essential difference between the Retail Award and the Agreement is the use of the phrase “double the rate they would be entitled to” versus “200% of the Base Rate of Pay” respectively.
[33] In the interim decision the Deputy President held that:
Rest break penalty payment
[18] The Agreement provides at clause 5.8 that where an employee is recalled to work without having had 10 consecutive hours of work, the employee is entitled to receive “200% of the Base Rate of Pay” for work performed until such time as they do have the requisite 10 hour rest period. That wording is to be contrasted with clause 31.2 of the Retail Award which relevantly provides for a penalty of “double the rate” the employee would be entitled to until released from duty.
[19] The SDA submit that the terms in the Retail Award are clear and unequivocal. The effect of the SDA construction is that if an employee rostered to work ordinary hours of work that attracted a shift or weekend penalty were recalled to work such hours without having had the requisite rest period, than the penalty of double time would be applied to the total ‘rate’ inclusive of the shift or weekend penalty for such ordinary hours until released. Unsurprisingly, the Applicant rejects the SDA’s construction and submits that a payment of a penalty on a penalty is not provided for in the Retail Award.
[20] What must be firstly said is that despite the SDA’s submission I do not regard the terms of the Retail Award as unequivocal. While, the award term refers to the ‘rate’ the employee would be entitled to until released from duty, it (the ‘rate’) is not defined. Furthermore, the SDA did not advance a detailed case for their contended construction of the clause. It is also relevant to note that the ambiguity of the clause was explicitly noted by His Honour Justice Ross in proceedings relating to the plain language re-drafting (PLED) of the Retail Award as part of the 4 yearly review of modern awards in a decision dated 1 October 2018. 14 The parties to those proceedings, including the SDA, apparently accepted that a level of ambiguity would continue to exist in the provisions of the PLED.15
[21] Absent a compelling case by the SDA as to the proper construction of clause 31.2 of the Retail Award, I am not persuaded that the terms of the Agreement are less beneficial. The provision of the Agreement (clause 5.8) is therefore a neutral consideration for the purpose of the BOOT assessment.
[34] The SDA contended that:
“… the correct interpretation of clause 31.2 of the Award is that it entitles an employee to ‘double the rate they would be entitled to” which may include any shift or weekend penalty for such ordinary hours, until released.”
[35] That is to say, the SDA contends that, where applicable (for example, when an employee works on a weekend), there is a penalty rate applied to the penalty rate already payable.
[36] The SDA submitted that:
“23. This is the only sensible interpretation available to this clause because the phrase “the rate they would be entitled to” is referable to the Award when read as a whole. Clause 31.2 sits outside, and after, the penalty and overtime provisions and is a separate entitlement for employees. The SDA submits that the plain intent and purpose of clause 31.2 is to appropriately compensate employees who are not afforded the minimum rest period between shifts, but also to act as a punitive disincentive to employers failing to roster the appropriate breaks in between shifts for their employees.
24. This is something plainly not provided for by clause 5.8 of the Agreement which limits the entitlement to “double the base rate” only.”
[37] Fantastic Furniture traversed the history of the clause in the Retail Award. It contended that:
“12 … at the time of award modernisation, it was a general rule that penalty rates would apply at the ordinary time rate. That is, unless an Award expressly provides for penalty rates to be paid on penalty rates, the usual rule is that the ordinary rate would be applied. It is clear that the Deputy President recognised this general rule, hence his reasons at [20] and [21] of the interim decision…
17. It is abundantly clear that none of the pre-modern award instruments contained a clause that required employers to pay a rest-break penalty based on weekend penalty rates or public holiday penalty rates. …”
[38] We reject the submission that the Deputy President “failed to interpret the award.” 16 We are satisfied that the Deputy President directly engaged with the submission put to him by the SDA. The SDA contended that the relevant clause was unequivocal. The Deputy President rejected that submission. The Deputy President made a positive finding that he was “not persuaded that the terms of [clause 5.8 of] the Agreement are less beneficial.”
[39] In making that finding we are satisfied, on a fair reading of the Interim Decision, that the Deputy President did not prefer the SDA’s “penalty on a penalty” construction of the Retail Award. His use of the phrase “not persuaded” was a polite way of rejecting the SDA submission about its preferred construction of clause 31.2 in the Award.
[40] The Deputy President made that finding in the context of the material before him. The SDA understood how Fantastic Furniture interpreted the Retail Award and why it contended that the provision in the Agreement essentially operated in the same way. The SDA could have, but did not, prosecute a more fulsome case with submissions and evidence about how clause 31.2 of the Award should be interpreted. Nor was such a case run before us. In those circumstances it was open to the Deputy President to find that clause 5.8 of the Agreement was not less beneficial than the Retail Award. We discern no error in his approach. Further, there is no error in the Deputy President deciding to treat clause 5.8 in the Agreement as a neutral consideration for the purposes of the BOOT. In comparing terms in an award with those in an agreement it is not always a binary choice; the agreement term does not have to be characterised as either beneficial or detrimental. It can be neither.
[41] For these reasons, ground 1 of the appeal is rejected.
Ground of appeal 2: 19-day month – lost RDO
[42] The second ground of appeal concerns the operation of clause 28.5 of the Award in comparison with the Agreement. The SDA submitted that the Deputy President erred by:
a) finding that the effect of the Agreement on affected employees only amounted to a non-financial detriment; and
b) failing to recognise the financial detriment for affected employees.
[43] Clause 28.5 of the Award provides that:
“28.5 In retail establishments employing on a regular basis 15 or more employees per week, unless specific agreement exists to the contrary between an employer and an employee, the employee will not be required to work ordinary hours on more than 19 days in each four week cycle.”
[44] In the Interim Decision the Deputy President held that:
“19-day month
[22] Clause 28.5 of the Retail Award provides for the ordinary hours of work of a full-time employee to be worked as a default on a 19-day month basis in retail establishments that employ 15 or more employees on a regular basis. While the Applicant’s establishments overwhelmingly employ less than 15 employees per establishment it is conceded by the Applicant that some of its establishments may employ 15 or more employees from time to time. Notwithstanding that, the Agreement provides for ordinary hours of work of full-time employees to be worked on a 20-day month basis across all of the Applicant’s establishments. The SDA contend this is less beneficial than the Award provision.
[23] While rejecting that the difference was less beneficial, or if it was, it was a non-financial detriment, the Applicant proposed an undertaking in the following terms;
“A full-time Onsite Retail Employee who works in a retail store which has employed 15 or more employees in a particular week in question and in each of the previous three weeks, will be paid an allowance of $20 for the particular week in question (gross).”
[24] The SDA reject that the payment of the $20 allowance compensates for the absence of a 19-day month. They contend that the financial detriment arises from the absence of penalty payments that would otherwise apply under the Award in circumstances where an employee, who for example, was working on a 19-day month on a Monday-Friday basis, was required to work on the 20th day (e.g. 4th Friday in the 4-week period). In that circumstance the employee would under the Retail Award be entitled to overtime penalty payments for work on such day. The Agreement rates do not compensate for such overtime penalty payments according to the SDA.
[25] The submission advanced by the SDA is with respect misconceived. It seems to proceed on the basis that in respect of establishments with 15 or more employees, any hours worked on the 20th day of a 4-week period attract overtime payments. That they attract overtime payments is not because it is the 20th day of the 4-week period, but rather because any hours worked on such day are outside the 38 ordinary hours of work of the relevant employees. That is no different to the arrangements that apply under the Agreement, that is, any work performed outside of the 38 ordinary hours of work will attract overtime payments. The fact that the ordinary hours may be worked over 20 days under the Agreement as opposed to 19 days does not alter the entitlement to penalty payments for work beyond 38 hours.
[26] It necessarily follows from the above that I do not accept the SDA’s submission as to their being a financial detriment. Nevertheless, the Applicant has proposed an additional $20 allowance to compensate employees for the non-financial detriment of not receiving a 19-day month in circumstances where there are periods during which 15 or more employees may work in a particular establishment. I accept in the circumstances of this case that the proposed allowance acts to offset the non-financial detriment. My view on this is reinforced by the fact that it is open to an employee entitled to a 19-day month under clause 28.5 of the Retail Award to agree to work ordinary hours on other than a 19-day month basis, and no penalty payment or additional allowance is prescribed to apply in such circumstances.
[27] While it is inherently difficult to assess the weight to be given to a non-financial detriment when assessing the BOOT, I am satisfied in the circumstances that the proposed undertaking offsets any detriment and as a consequence this item is a neutral consideration for the purpose of the BOOT.
[45] The SDA contended that:
“34. By failing to recognise the financial detriment for affected employees, the Deputy President erred at [26] and [27] by finding that Fantastic Furniture’s proffered undertaking of a $20 allowance offset any detriment rendering it a neutral consideration for the purpose of the BOOT. As the SDA had contended before the Deputy President, the financial detriment per 4 week employment cycle for a Level 1 Onsite Retail Team Member is readily calculable in the amount of $113.57 (even taking into account the proffered undertaking of a $20 allowance).”
[46] Fantastic Furniture contended that:
“23. …. There is no financial detriment to employees as they will still be working 152 hours. However, rather than working those hours over 19 days, they will be working those hours over 20 days. The Deputy President below properly dealt with the SDA’s argument in his interim decision on 4 February 2020 at [25] to [27] on this point and his reasoning reveals no error.”
[47] Before us Mr Bruno submitted that “the Deputy President has either misunderstood the submission of the SDA, or the Deputy President has misunderstood what the award actually provided for …” 17
[48] We discern no error in the decision of the Deputy President. The Deputy President understood the submissions of the SDA and, in paragraph [25], correctly stated how the provisions of the Retail Award operate and why there is, in the circumstances created by the Agreement, no financial detriment. The purported financial detriment per four-week employment cycle advanced by the SDA does not arise. The Deputy President noted how it is “inherently difficult to assess the weight to be given to a non-financial detriment when assessing the BOOT”. He further noted the undertaking proffered in relation to the $20 allowance. Consequently, it was open to the Deputy President to find that the Agreement with all the undertakings (including the $20 allowance) passed the BOOT.
[49] For these reasons, ground 2 of the appeal is rejected.
Ground of appeal 3: Toilet cleaning
[50] The third ground of appeal concerns the inclusion of “incidental cleaning” without any limitation in the Agreement compared to the Retail Award which excludes “toilet cleaning”. The SDA submitted that the Deputy President “erred by failing to expressly find that there was indeed [a] non-financial detriment concerning the Agreement’s failure to exclude “toilet cleaning” from the duty to perform incidental cleaning.
[51] Schedule B, clause B.1.2 of the Retail Award provides:
“Retail Employees will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning. The cleaning of toilets is not incidental cleaning except in the case of a take-away food establishment.”
(Our emphasis)
[52] Schedule B of the Agreement provides:
“Onsite Retail Employees will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning.”
[53] In the Interim Decision the Deputy President held that:
Toilet cleaning
[32] The SDA refer to Schedule B - Classifications of the Retail Award and specifically B.1.2 which states that retail employees may be required to undertake incidental cleaning but then goes on to state ‘The cleaning of toilets is not incidental cleaning except in the case of a take away food establishment’. By comparison the Agreement does not exclude ‘toilet cleaning’ from incidental cleaning that retail employees may be required to undertake.
[33] The Applicant acknowledges that such duties are not excluded under the Agreement but that nothing in the Retail Award prohibits toilet cleaning. Further, the pay rates in the Agreement are in excess of the Cleaning Services Award 2010 and equivalent to rates in the Fast Food Award 2010 for such work. It also submits that for stores with public toilets, cleaners are to be engaged.
[34] Contrary to the SDA submissions, I do not accept that the relevant provision in the Retail Award acts to prevent the Applicant from requiring its employees to undertake particular duties under the terms of an enterprise agreement, so long as those duties are within the skills, competence and training of the employee and of course subject to any relevant regulatory requirements. In the present case, the issue of concern is that of the cleaning of staff toilets. While that work may be regarded as distasteful by some staff, I don’t believe it can be seriously argued that such work would be beyond the skills, competence and training of employees. The fact that it may not be work that is covered by a classification under the Retail Award does not mean that it is not work that may be required to be performed under the terms of the Agreement.
[35] I note that the Cleaning Services Award 2010 (the Cleaning Award) provides for toilet cleaning at the classification of Cleaning Services Employee Level One which attracts a minimum hourly rate of pay of $20.82. In circumstances where such employees are engaged for the major portion of their shift on cleaning toilets, they would receive an additional allowance of 1.766% of the Level 1 base rate of pay, bringing their hourly rate of pay to $21.18 per hour. The minimum rate of pay under the Agreement for a Level 1 Onsite Retail Team Member is $21.41. Even allowing for the unlikely scenario of an employee at that classification under the Agreement being required to clean toilets for the major portion of their shift, they would still receive a higher rate of pay under the Agreement than under the Cleaning Award. In these circumstances I do not accept that there is a financial detriment. To the extent that there may be a non-financial detriment relative to the Retail Award I give it limited weight in the assessment of the BOOT.
[54] The SDA contended that the Deputy President fell into error by basing the BOOT assessment flowing from the removal of the express exclusion on the wage rages applicable to cleaners engaged for the major portion of their shift on cleaning toilets under the Cleaning Services Award 2010. The SDA contended that this was an irrelevant consideration. The SDA further contended that the Deputy President “erred by failing to expressly find that there was indeed [a] non-financial detriment…” “given the central significance of any finding as to detriment in the proper application of the BOOT”. Even if it is found that the Deputy President made a finding that there was a detriment, the SDA contended that “the Deputy President ultimately failed to have regard to [that] detriment … when applying the BOOT.”
[55] Fantastic Furniture contended that it was “not correct to say that the Deputy President failed to make an assessment as to whether any detriment existed”, and further that:
“27 It is clear that at [35] of the interim decision on 4 February 2020, that the Deputy President correctly determined that there was no financial detriment and the extent of any non-financial detriment was such that it had limited weight to the BOOT test.”
[56] While the Deputy President referenced the Cleaning Award in the Interim Decision it is not correct to contend that he used it as the reference instrument for the purposes of the BOOT. He was simply drawing a comparison with the rates of pay. He was observing that employees under the Agreement are better off even when compared to the Cleaning Award. It might be said that such a comparison was unnecessary, but it does not detract from the fact that the Deputy President properly returned to the BOOT considerations relevant to the Retail Award and the Agreement. The Deputy President found that there was no financial detriment. He then noted the relative non-financial detriment apropos the Retail Award. He then assessed the same and accorded it “limited weight”. We discern no error in the approach taken by the Deputy President. The Deputy President applied the orthodox approach to such matters. He made a judgement about proportion, of balance and relative emphasis. He weighed different considerations and came to the conclusion that, in the context of the Agreement as whole (inclusive of the undertakings provided) the Agreement with the undertakings, passed the BOOT. There is no basis for disturbing that finding on appeal.
[57] For these reasons, ground 3 of the appeal is rejected.
Conclusion
[58] We consider that permission to appeal should be granted because the grounds of appeal raise matters of substance and importance concerning the application of the BOOT, when the Commission is considering the approval of an enterprise agreement. However, for the reasons given, we have rejected all three BOOT issues. An appeal is concerned with the correction of error. We cannot identify any error in the Deputy President’s assessment of the BOOT in its totality. Consequently, the substantive appeal ground (i.e. that the Agreement did not pass the BOOT) has not been made out. Accordingly, the appeal must be dismissed.
VICE PRESIDENT
Appearances:
D Bruno of counsel for the Appellant.
D Mahendra of counsel for the Respondent.
Hearing details:
2020
Sydney, by telephone
22 April
Printed by authority of the Commonwealth Government Printer
<PR720821>
1 [2020] FWCA 699
2 [2020] FWC 559
3 SDA Submissions, 16 March 2020, para 8
4 CAEN096091709
5 AE872456
6 774 employees were eligible to vote. 537 (69.3%) voted. 367 (68.3%) approved the Agreement.
7 AB361-370
8 AB390
9 AB400
10 AB412
11 PR716899
12 [2020] FWCFB 1891
13 [2017] HCA 53, 262 CLR 593 at [99]
14 [2018] FWC 6075
15 Ibid at [45]
16 Transcript PN43
17 Transcript PN36
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