Shriya Holdings Pty Ltd T/A Caltex Star Mart East Perth
[2017] FWC 3881
•24 JULY 2017
| [2017] FWC 3881 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Shriya Holdings Pty Ltd T/A Caltex Star Mart East Perth
(AG2017/74)
| DEPUTY PRESIDENT BOOTH | SYDNEY, 24 JULY 2017 |
Application for approval of the Shriya Holdings Pty Ltd Collective Enterprise Agreement 2016 – application refused
An application has been made for approval of an enterprise agreement known as Shriya Holdings Pty Ltd Collective Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Shriya Holdings Pty Ltd (Shriya Holdings).
The agreement is a single enterprise agreement and is not a greenfields agreement.
On 5 June 2017 my chambers sent an email to Mr Shravan Panuganti of Shriya Holdings requesting he provide a roster for the month of May 2017 for all employees at Shriya Holdings Pty Ltd. That email also noted that a signed copy of the Agreement would need to be provided before I could consider approving the Agreement. A notice of listing for hearing on 17 July 2017 was attached to the email. I directed that the notice of listing be provided to the employee bargaining representative for the Agreement.
Mr Panuganti provided the requested roster on 15 June 2017. An analysis was conducted of this roster and it revealed that 5 of the 7 employees who worked that roster would not have been better off under the Agreement.
I caused my chambers to send a further email to Mr Panuganti on 6 July 2017 providing this analysis and stating that this analysis suggested the Agreement did not pass the Better Off Overall Test (BOOT). The email stated that I would require him to respondent to this analysis at the hearing on 17 July 2017, and requested any written response he wished to make be provided to my chambers by 14 July 2017. The email from my chambers of 6 July 2017 also again requested a signed copy of the Agreement be provided prior to the hearing of the matter.
Despite the email on 6 July 2017 no further material was filed by Mr Panuganti prior to the hearing on 17 July 2017.
The hearing was conducted by telephone. At the hearing Mr Panuganti appeared on behalf of Shriya Holdings Pty Ltd. There was no appearance from the employee bargaining representative. I indicated that unless further evidence was available, I did not consider the Agreement passed the BOOT and expressed specific concerns in this regard. Mr Panuganti confirmed he would appreciate a further opportunity to provide an analysis demonstrating employees were in fact better off under the Agreement. I indicated that any such analysis, together with a signed copy of the Agreement must be received no later than 21 July 2017, and that I intended to publish a decision in the matter on Monday, 24 July 2017.
A further analysis from Mr Panuganti was in fact sent to my chambers on Monday 24 July 2017. However no signed copy of the Agreement has been provided.
Section 185(2)(a) provides that an application to the Fair Work Commission for approval of an enterprise agreement must be accompanied by a signed copy of the agreement. Despite the numerous requests outlined above, no signed copy of the agreement has been provided by the Applicant. On that basis alone I am unable to approve the Agreement.
However, if I had been provided with a signed copy of the Agreement for the reasons outlined below I would be unable to approve the Agreement.
Better off overall test (BOOT)
I must be satisfied that the Agreement passes the BOOT before I can approve it.[1]
Section 193(1) of the Act provides that an enterprise agreement passes the BOOT if the Commission 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 modern award applied to the employee. The “test time” is when the application for approval of the enterprise agreement is made.
The BOOT is not applied as a line by line analysis. It is a global test requiring me to consider the advantages and disadvantages to award covered employees and prospective award covered employees. The application of the BOOT requires me to identify the terms of the Agreement that are more beneficial to employees when compared to the relevant modern award, as well as the terms that are less beneficial and then to conduct an overall assessment of whether an employee would be better off under the Agreement.[2]
In this matter, the relevant award is the Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Award).
At hearing, Mr Panuganti confirmed that the roster previously provided of May 2017 was a typical roster. He also confirmed that except for one, all employees were employed on a permanent basis.
In response to concerns previously raised by the Fair Work Commission, Mr Panuganti provided revised rates of pay in an email of 17 May 2017. I note that those rates are each $0.05 above the corresponding rates of pay contained in the Agreement that was submitted to Commission for approval.
However unlike the Award, the Agreement does not make provision for penalty rates and loadings.
This means that Full-time employees would not be better off if they worked afternoon shifts or night shifts from Monday to Friday. Part-time employees are not better off if they work weekends or night shifts from Monday to Friday. Casual employees would not be better off if they engage in any overtime work, due to not receiving an additional penalty which is applicable under the Award.
Mr Panuganti’s own analysis, provided to the Commission today, is consistent with this analysis.
For the reasons set out above I am not satisfied the Agreement passes the BOOT. This, along with the failure to provide a signed copy means I am unable to approve the Agreement.
Accordingly, the application must be refused.
DEPUTY PRESIDENT
[1] S. 186(2)(d) of the Act
[2] Re Armacell Australia Pty Ltd (2010) 202 IR 38 [41].
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