The Real McCoy Snackfood Company Pty Ltd T/A Snack Brands Australia

[2019] FWCA 2761

[2019] FWCA 2761

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Real McCoy Snackfood Company Pty Ltd T/A Snack Brands Australia
(AG2019/339)

THE REAL MCCOY SNACKFOOD COMPANY (FACTORY AND WAREHOUSE STAFF) ENTERPRISE AGREEMENT 2019

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 23 APRIL 2019

Application for approval of the The Real McCoy Snackfood Company (Factory and Warehouse Staff) Enterprise Agreement 2019.

Introduction and background

[1] The Real McCoy Snackfood Company Pty Ltd (Real McCoy) has applied for approval of The Real McCoy Snackfood Company (Factory and Warehouse Staff) Enterprise Agreement 2019 (Enterprise Agreement), which covers persons employed by Real McCoy in the manufacture, preparation, packing and distribution of snack foods (Employees). The Employees are covered by the Food, Beverage and Tobacco Manufacturing Award 2010 (FBTM Award).

[2] The Australian Workers’ Union (AWU) is a bargaining representative for the Enterprise Agreement. The AWU has filed a Form F18 statutory declaration. It does not support the approval of the Enterprise Agreement. The AWU contends that the Enterprise Agreement does not pass the better off overall test (BOOT).

[3] There are 14 Employee bargaining representatives for the Enterprise Agreement.

[4] One Employee bargaining representative has raised concerns with the Fair Work Commission (Commission) in relation to differences between the Enterprise Agreement and the FBTM Award.

Better Off Overall Test (BOOT)

[5] I will commence with a discussion of general principles relevant to the BOOT and then analyse the various BOOT issues raised by the AWU and the Employee bargaining representative in their opposition to the application for approval of the Enterprise Agreement.

General principles

[6] I must be satisfied that the Enterprise 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 enterprise agreement would be better off overall if the enterprise 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.2

[7] In Armacell Australia Pty and Others, 3the application of the BOOT was explained by the Full Bench in the following manner:

“The BOOT, as the name implies, requires an overall assessment to be made. This requires 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.”

[8] The BOOT is not applied as a line by line analysis. It is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees. 4 An enterprise agreement may pass the test even if some award benefits have been reduced, as long as overall, those reductions are more than offset by the benefits of the enterprise agreement.5

[9] Ultimately, the application of the BOOT is a matter that involves the exercise of discretion, and it involves a degree of subjectivity or value judgement. 6

[10] It is clear from the references to “each … employee” in section 193(1) of the Act that every employee to whom the enterprise agreement will apply, if approved, must be better off overall than if the relevant modern award applied to the employee. It is not enough that a majority or most of the employees to whom the enterprise agreement will apply, if approved, will be better off overall than if the relevant modern award applied. 7

[11] Section 193(7) of the Act is a facultative provision which permits the Commission to be satisfied, in particular circumstances, that all employees in a class of employees will be better off if the agreement applied to that class than if the relevant modern award applied to that class. Section 193(7) provides as follows:

“For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”

[12] Section 193(7) was explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:

“818. Although the better off overall test requires FWA to be satisfied that each award covered employee and each prospective award covered employee will be better off overall, it is intended that FWA will generally be able to apply the better off overall test to classes of employees. In the context of the approval of enterprise agreements, the better off overall test does not require FWA to enquire into each employee’s individual circumstances.”

[13] The selection of a class for the purpose of s 193(7) of the Act will only be of utility if the enterprise agreement affects the members of the class in the same way such that there is likely to be a common BOOT outcome. 8

[14] It is also important to recognise that the BOOT is hypothetical, because it requires an assessment of whether each employee, and each “prospective award covered employee”, would be better off overall if the enterprise agreement applied to him or her than if the relevant award did. 9

Monetary benefits under the Enterprise Agreement compared to the FBTM Award

[15] The Enterprise Agreement provides for rates of pay which are considerably higher than the FBTM Award. A comparison between the rates of pay is shown in the table below:

Enterprise Agreement Classification	Enterprise Agreement Rate of Pay/Hour	FBTM Award Classification	FBTM Award Rate of Pay/Hour	Percentage difference
Level 1	$24.52	Level 1	$18.93	30%
Level 2	$26.87	Level 2	$19.47	38%
Level 3	$27.31	Level 3	$20.22	35%
Level 4	$27.75	Level 4	$20.91	33%
(Level 4)	$27.75	Level 5	$22.04	26%
Level 5	$29.54	Level 6	$22.73	30%
Level 6	$31.93	(Level 6)	$22.73	40%
Level 7	$31.93 (plus $100/week leader allowance)	(Level 6)	$22.73	40%

[16] It is relevant to have regard to the fact that these higher rates of pay apply to the calculation of monetary entitlements under the Enterprise Agreement. 10 The Enterprise Agreement also provides for 3% yearly increases to rates of pay. In addition, overtime is payable under the Enterprise Agreement after 36 ordinary hours in a week, whereas overtime is payable after 38 hours in a week under the FBTM Award.

[17] The Enterprise Agreement provides for two rosters, namely the “A Shift” and the “B Shift”. At the “test time”, those are the rosters that were in place, in addition to day work. Real McCoy provided a number of worked examples which demonstrate to my satisfaction that Employees on Shift A and Shift B would be better off under the Enterprise Agreement compared to the FBTM Award. 11 The AWU and other employee bargaining representatives were given the chance to respond to submissions made by Real McCoy, including these worked examples. Neither the AWU nor the employee bargaining representatives sought to challenge the accuracy or reliability of the worked examples provided by Real McCoy. Further, the AWU did not provide any calculations or worked examples to support its contention that Employees will not be better off overall under the Enterprise Agreement.

[18] The Enterprise Agreement permits rosters to be changed in certain circumstances, but there has not been any suggestion by any person that any change to the Shift A or Shift B rosters are proposed or likely. Notwithstanding this, the Commission must consider the possible outcomes for Employees and prospective Employees working or being required to work a variety of roster patterns which are permitted by the terms of the Enterprise Agreement in assessing the BOOT. 12 For this reason, I requested Real McCoy to provide an undertaking that the shift loadings referred to in clause 15.2 of the Enterprise Agreement will apply to any shift that starts at any time after 3:00pm or before 3:00am, not just B Shift. Real McCoy provided such an undertaking. I am satisfied that this undertaking, coupled with the other relevant provisions of the Enterprise Agreement concerning rates of pay, hours of work, overtime, Saturday, Sunday and public holiday work and the like, will ensure Employees and prospective Employees remain better off overall compared to the FBTM Award.

AWU’s concerns

[19] The first issue raised by the AWU concerns shift penalties. The AWU contends that clause 15 of the Enterprise Agreement does not provide for shift penalties for Employees who commence work between 3:00am and 6:00am, nor does it provide for shift penalties for some Employees who finish after 6:00pm or for night shift Employees who commence at 3pm. The FBTM Award does provide shift penalties in these circumstances.

[20] Under the Enterprise Agreement, A Shift Employees may start at any time after 3:00am or before 3:00pm. 13 A Shift Employees do not receive shift loadings. If an A Shift Employee starts a shift between 3:01am and 6am, they do not receive a shift loading under the Enterprise Agreement, but would receive a 12.5% loading for the shift if the FBTM Award applied to them. Similarly, if an A Shift Employee finishes a shift after 6pm, they do not receive a shift loading under the Enterprise Agreement but would receive a 15% afternoon or night shift loading for the shift if the FBTM Award applied to them. The absence of shift loadings in these circumstances is a relevant disadvantage for Employees which must be taken into account when considering the BOOT.

[21] It is necessary to consider this disadvantage, together with other disadvantages, in the context of higher rates of pay and other benefits under the Enterprise Agreement compared to the FBTM Award. At this stage, however, I will use the following example to isolate the impact of the shift loading differences described above on weekly payments to Employees:

• under the Enterprise Agreement, a level 1 A Shift Employee working 3 x 12 shifts (36 ordinary hours) would be paid $882.72 (36 x $24.52 = $882.72); and

• under the FBTM Award, a level 1 employee working 36 ordinary hours would be paid $681.48. However, they would receive $766.67 if they worked an early morning shift or $784.70 if they worked an afternoon or night shift under the FBTM Award. The differential is either $116.05 or $98.02 per week.

[22] B Shift Employees receive a loading of 14% until 31 January 2021 and 15% from 1 February 2021. These loadings are very close to those provided for in the FBTM Award (between 12.5% and 15%). Further, because the loadings under the Enterprise Agreement for B Shift Employees are applied to higher base rates of pay than the FBTM Award, the total rates of pay for B Shift Employees (including loadings) are higher under the Enterprise Agreement than the FBTM Award.

[23] The second issue raised by the AWU is that clause 15 of the Enterprise Agreement allows for hours of work to be changed, contrary to the FBTM Award. In particular, the AWU points to the fact that clause 15.6 of the Enterprise Agreement allows Real McCoy to change start and finish times without the agreement of a majority of Employees, which “impacts on the ability of workers to access penalties and therefore has an impact which is difficult to ascertain”.

[24] Clause 15.6 of the Enterprise Agreement does permit Real McCoy to implement any changes to commencing and finishing times of shifts, on 12 weeks’ notice, where an agreement with the majority of Employees is not reached. Consultation is also required under the Enterprise Agreement for such changes. Under the FBTM Award, where an agreement cannot be reached between a majority of employees and an employer, the employer retains the right to fix the daily hours of work of employees but only within the spread of hours prescribed in the FBTM Award (6am until 6pm for day workers and the times specified in clause 31 for shift workers). This limitation on the spread of hours in the FBTM Award is an advantage for employees because it provides a greater level of certainty for employees than the regime provided for in the Enterprise Agreement. It is therefore a disadvantage which must be taken into account in assessing whether Employees are better off overall under the Enterprise Agreement compared to the FBTM Award.

[25] As to the AWU’s contention that Real McCoy’s right under the Enterprise Agreement to make changes to shift times “impacts on the ability of workers to access penalties”, a change in shift times may result in an Employee not being entitled to a shift penalty under the Enterprise Agreement when they would be so entitled under the FBTM Award. To provide a further protection to Employees against potential future changes to shift times, Real McCoy provided, at my request, the following undertaking:

“The loadings in clause 15.2 of The Real McCoy Snackfood Company (Factory and Warehouse Staff) Enterprise Agreement 2019 will be paid to any employee whose roster requires them to start at any time after 3pm or before 3am.”

[26] The AWU’s third concern is that clause 16 of the Enterprise Agreement only affords penalties to some employees for work outside the span of hours, at the rate of 140%. The FBTM Award affords employees overtime rates at 150% for the first three hours, 200% for subsequent hours and 200% for all Sunday work.

[27] The Enterprise Agreement provides that Employees who are rostered to work a Saturday or Sunday receive 140% of their ordinary rate. The Enterprise Agreement provides that Employees who are rostered to work on a public holiday receive 140% of their ordinary rate plus 12 hours pay (approximately 240%). This is compared with the following under the FBTM Award:

• for Saturdays – 150% for shift workers and day workers where agreement is reached with a majority of employees for ordinary hours to be worked on a Saturday;

• for Sundays - 200% for shift workers and day workers where agreement is reached with a majority of employees for ordinary hours to be worked on a Sunday; and

• for public holidays:

o 200% for continuous shift workers;

o 250% for day workers, with a minimum of three hours work at the rate of 250%; and

o 250% for shift workers on other than continuous shift work.

[28] The differences between pay rates for rostered work on Saturdays and public holidays under the Enterprise Agreement and the FBTM Award are modest, particularly when regard is had to the higher base rates of pay under the Enterprise Agreement compared to the FBTM Award. For example, a level 4 Employee under the Enterprise Agreement who is at level 5 under the FBTM Award would receive $38.85 ($27.75 x 1.4 = $38.85) per hour under the Enterprise Agreement or $33.06 ($22.04 x 1.5 = $33.06) per hour under the FBTM Award for rostered work on a Saturday.

[29] The difference between pay rates for rostered work on Sundays under the Enterprise Agreement and the FBTM Award is significant: 140% v 200%. By way of example, if a level 4 Employee under the Enterprise Agreement who is at level 5 under the FBTM Award 14 worked 12 hours on a Sunday, they would receive $466.20 (12 x $27.75 x 1.4 = $466.20) under the Enterprise Agreement or $528.96 (12 x $22.04 x 2 = $528.96) under the FBTM Award. This is a difference of $62.76. Accordingly, a part time Employee who only worked 12 hours on a Sunday would be paid $62.76 less under the Enterprise Agreement than under the FBTM Award. However, if the Employee worked full time or at least 11 hours on a Monday to Friday in addition to 12 hours on a Sunday, the Employee would receive more pay under the Enterprise Agreement than under the FBTM Award. The calculations underpinning this analysis are as follows:

• Enterprise Agreement

o 12 hour shift on a Sunday = $466.20 (12 x $27.75 x 1.4 = $466.20)

o 11 hour shift on a weekday = $305.25 ($27.75 x 11 = $305.25)

o Total payment = $771.45

• FBTM Award

o 12 hour shift on a Sunday = $528.96 (12 x $22.04 x 2 = $528.96)

o 11 hour shift on a weekday = $242.44 ($22.04 x 11 = $242.44)

o Total payment = $771.40

[30] Although Real McCoy does not roster Employees to work ordinary hours on a Sunday, it may do so in the future. In light of this issue, Real McCoy provided, at my request, an undertaking in the following terms:

“An employee to whom The Real McCoy Snackfood Company (Factory and Warehouse Staff) Enterprise Agreement 2019 applies will not be rostered to work only on a Sunday in any given week. Any employee who is rostered to work on a Sunday will also be rostered to work at least 11 ordinary hours during the period from Monday to Friday in the same week.”

[31] The AWU’s fourth concern is that neither clause 16 nor clause 17 of the Enterprise Agreement gives a guarantee of minimum hours when overtime is worked on a public holiday. The FBTM Award provides the following guarantees (at clause 33.8) in these circumstances:

• day worker and non-continuous shift worker – must be paid for a minimum of three hours work at the rate of 250%; and

• continuous shift worker – must be paid for a minimum of three hours work at the rate of 200%.

[32] Clause 16.2 of the Enterprise Agreement provides:

“If the Employee is a Permanent Employee and he or she works on a Public Holiday, the Employee will be paid 12 hours normal pay plus an additional amount equal to 1.4 times the Employee’s ordinary hourly rate…”

[33] Clause 16.2 does not distinguish between ordinary hours and overtime worked on a public holiday. In my view, it applies, on its proper construction, to both ordinary hours and overtime worked on a public holiday. Accordingly, if an Employee worked three hours overtime on a public holiday, clause 16.2 would require Real McCoy to pay the Employee 12 hours pay at 140% of their ordinary rate of pay. This exceeds what an Employee would receive under the FBTM Award. In the alternative, even if clause 16.2 of the Enterprise Agreement was construed such that it only applied to ordinary hours and did not apply to overtime, I am satisfied that the higher rates of pay under the Enterprise Agreement compared to the FBTM Award would be sufficient to overcome such a disadvantage.

[34] The AWU’s fifth concern is that clause 17 of the Enterprise Agreement provides for overtime for work undertaken outside ordinary hours to be paid at the flat rate of 150% of the Employee’s normal rate of pay, whereas the FBTM Award provides (at clause 33.1) for overtime to be paid for work undertaken outside ordinary hours at the following rates:

• for day workers and shift workers other than continuous shift workers in relation to overtime on Monday to Saturday – 150% for the first three hours and 200% thereafter;

• for day workers and shift workers other than continuous shift workers in relation to overtime on Sunday – 200%; and

• for continuous shift workers in relation to overtime on any day – 200%.

[35] The percentages for overtime are higher under the FBTM Award compared to the Enterprise Agreement. This is a disadvantage to which I will give due weight in applying the BOOT. Balanced against this are the higher base rates of pay under the Enterprise Agreement compared to the FBTM Award and overtime is applied after 36 hours under the Enterprise Agreement compared to after 38 hours under the FBTM Award. The modelling and calculations undertaken by Real McCoy address a range of scenarios, including where employees work 12 hours overtime on a Saturday and 12 hours overtime on a Sunday, in addition to 36 ordinary hours during the week. The modelling and calculations undertaken by Real McCoy demonstrate to my satisfaction that even in a week in which a significant amount of overtime is undertaken (24 hours), Employees remain better off overall under the Enterprise Agreement than under the FBTM Award. 15

[36] The AWU’s sixth concern is that the Enterprise Agreement provides for a first aid allowance, a HSR allowance, a laundry allowance and a meal allowance, but other allowances prescribed in clause 26 of the FBTM Award are excluded.

[37] I accept, as submitted by Real McCoy, that:

(a) under the Enterprise Agreement, the following allowances are provided:

(i) clause 31 – Health and Safety Representatives Committee. Employees who are members of the HSR Committee will receive an allowance of $16.10 per week. There is no comparable provision in the FBTM Award;

(ii) clause 30 - First Aid. A flat rate of $16.10 per week in paid to Employees appointed to perform first aid duty, compared with an entitlement to 75.6% of the standard rate per week extra under clause 26.2(b) under the FBTM Award (currently $16.70)’

(iii) annexure B – laundry allowance. The laundry allowance of $10 per week is broadly comparable to the FBTM Award benefit of an employer reimbursing an employee for the cost of laundering special clothing when the employee is required to wear such clothing;

(b) in respect of other allowances provided for in the FBTM, that are not provided under the Enterprise Agreement:

(i) clause 26.1 (skill related allowances) – while there is no provision for

allowances for heavy vehicle driving and boiler attendants under the Enterprise Agreement, there is no requirement for Employees to undertake such work. In respect of leading hands (clause 26.1(a), FBTM Award), the Enterprise Agreement provides a rate for level 7 that is inclusive of a team leader allowance;

(ii) clause 26.2 – while there is no provision in the Enterprise Agreement for allowances for damage to clothing, spectacles and hearing aids, Real McCoy provides personal protective equipment including prescription safety spectacles to Employees, and replaces them if damaged. An allowance is accordingly unnecessary;

(iii) clause 26.3 (special rates) – while there is no provision in the Enterprise Agreement for allowances for employees carrying out work in cold place, hot places, wet places, confined spaces, dirty or dusty work or fumigation gas, Employees of Real McCoy are not required to work in any of the conditions described in clause 26.3 of the FBTM Award that would attract special rates. The instances for which special rates would be attracted under the FBTM Award do not arise; and

(iv) clause 26.5 (transfer, travelling and working away from usual place of work allowances) There is no provision in the Enterprise Agreement for allowances where an Employee engages in travel associated with work away from the Employee’s usual location. Employees are generally not required to engage in travel for work related purposes. When any such travel is required, such as for training purposes, Real McCoy arranges and pays for travel or reimburses all costs associated with the travel.

[38] The AWU’s seventh concern is that Easter Sunday is not recognised as a public holiday in the Enterprise Agreement, which the AWU contends is a breach of the National Employment Standards and the Public Holidays Act 2010 (NSW).

[39] Section 115 of the Act defines public holidays to include Good Friday and Easter Monday, but does not include Easter Sunday. Accordingly, the fact that Easter Sunday is not included within the scope of clause 18 of the Enterprise Agreement does not give rise to a breach, or potential breach, of the National Employment Standards. As to legislation in New South Wales concerning public holidays, clause 18.2 of the Enterprise Agreement expressly includes as public holidays “any other public holiday declared or prescribed by under [sic] a law of New South Wales to be observed generally within New South Wales”. In addition, Real McCoy does not roster any work on a Sunday. Instead, Real McCoy offers some Employees the opportunity to work non-rostered overtime on some Sundays. Such offers may be accepted or rejected by Employees. If an Employee works voluntary overtime on a Sunday which is a public holiday, they will be paid in accordance with clause 16.2 of the Enterprise Agreement. That is, they will receive 12 hours pay and a penalty of 140%. For all these reasons, I reject the AWU’s contention relating to Easter Sunday.

Employee’s concerns

[40] The Employee who has raised concerns with the Commission in relation to the Enterprise Agreement has addressed the following matters:

(a) the Enterprise Agreement has a flat rate for overtime (150%), whereas the FBTM provides for overtime at either 150% or 200%, depending on the duration of the overtime and when it is performed; 16

(b) the Enterprise Agreement does not state a shift penalty for Employees on Shift A (3am to 3pm) and provides for the following shift penalties for Employees on Shift B (3pm to 3am): year 1 and 2 = 14%, year 3 and 4 = 15%. In contrast, the FBTM Award contains shift penalty provisions which are more beneficial to Employees; 17

(c) Real McCoy has provided the Commission with its roster for the Packaging & Processing departments, but not for Warehouse staff or Lab staff;

(d) the Enterprise Agreement states that a working week is “Monday to Sunday”, which gives Real McCoy the option to roster Employees to work on a Sunday;

(e) the roster provided by Real McCoy to the Commission is based on a 3-week turnaround. Employees are regularly rostered on a Sunday at the rate of 2 out of each 3 weeks. Accordingly, the Employee contends such workers should receive 5 weeks annual leave per year, as set out in the FBTM Award;

(f) the Enterprise Agreement provides for a weekend penalty rate of 140% of the ordinary rate, whereas the rate under the FBTM Award is 150%; and

(g) the FBTM Award provides for day workers who are required to work a public holiday to be paid for a minimum of three hours work at the rate of 250%. The Employee submits that the Enterprise Agreement provisions are not as beneficial to Employees.

[41] The matters raised by the Employee in subparagraphs [40(a), (b), (d), (f) and (g)] have been addressed in response to the concerns raised by the AWU.

[42] As to subparagraph [40(c)], Real McCoy has provided the Commission and the employee bargaining representatives with a copy of the rosters sought.

[43] As to subparagraph [40(e)], Real McCoy submits that it does not roster employees to work on Sundays or public holidays and any work undertaken on those days is non-rostered overtime, which an Employee can accept or reject. As a result, Real McCoy contends that none of it Employees meet the definition of a shiftworker for the purpose of the additional week of annual leave in clause 34.3(a) of the FBTM Award. I accept that this is currently the case, but the scope for roster changes under the Enterprise Agreement means that these rostering practices may change in the future. As a result, Real McCoy has provided, at my suggestion, the following undertaking:

“For the purpose of the National Employment Standards, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays. Any employee who meets this definition of shiftworker will be entitled to an additional week of annual leave for each year of service in accordance with s 87(1)(b) of the Fair Work Act 2009 (Cth).”

Conclusion on BOOT

[44] A copy of the undertakings provided by Real McCoy in support of its application for approval of the Enterprise Agreement are annexed is marked “A” to this decision (Undertakings).

[45] I have had regard and given due weight to the terms of the Enterprise Agreement which are more beneficial for an Employee and the terms which are less beneficial for an Employee compared to the FBTM Award. Many of those more beneficial and less beneficial terms are specifically addressed in this decision, while others are identified in the F17 and the submissions made by Real McCoy and the AWU in this matter. Having regard to all those matters, together with the Undertakings, my overall assessment is that, as at the test time, each employee and prospective employee covered by the FBTM Award would be better off overall if the Enterprise Agreement applied to them than if the FBTM Award applied to them. I am particularly persuaded by my assessment that the higher pay rates under the Enterprise Agreement outweigh the less beneficial terms in the Enterprise Agreement compared to the FBTM Award.

Satisfaction of other requirements

[46] I am satisfied that the effect of accepting the Undertakings is not likely to:

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

(b) result in substantial changes to the Enterprise Agreement.

[47] The views of each person who the Commission knows is a bargaining representative for the Enterprise Agreement have been sought in relation to the Undertakings.

[48] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[49] Subject to the Undertaking, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[50] The AWU, being a bargaining representative for the Enterprise Agreement, has given notice under s.183 of the Act that it wants the Enterprise Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Enterprise Agreement covers the AWU.

[51] The Enterprise Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 April 2019. The nominal expiry date of the Enterprise Agreement is 22 April 2023.

DEPUTY PRESIDENT

Annexure A

 1   s.186(2)(d) of the Act

 2   s.193(6) of the Act

 3   [2010] FWAFB 9985 at [41]

 4   SDA v Beechworth Bakery Employee Co Pty Ltd[2017] FWCFB 1664 at [12]

 5   Re Australia Western Railroad Pty Ltd T/A ARG – A QR Company [2011] FWAA 8555 at [8]; NTEIU v University of New South Wales[2011] FWAFB 5163 at [47]

 6   TWU v Jarman Ace Pty Ltd[2014] FWCFB 7097 at [28]

 7   Loaded Rates Agreements [2018] FWCFB 3610 at [100]

 8   Loaded Rates Agreements [2018] FWCFB 3610 at [115(2)]

 9   SDA v Aldi Foods Pty Ltd [2016] FCAFC 161 at [33] per Jessup J, who was in the minority but no issue was taken by the majority with this part of Jessup J’s reasons.

 10   Beechworth Bakery Employee Co Pty Ltd[2016] FWCA 8862 at [68]

 11   Real McCoy’s outline of submissions dated 25 March 2019 at Attachment A

 12   Loaded Rates Agreements [2018] FWCFB 3610 at [110]

 13   Enterprise Agreement at clause 15

 14   The pay rate differential between these classes of Employees is 26% (see paragraph [15 above), being the smallest differential between the various classifications of Employees.

 15   Real McCoy’s outline of submissions dated 25 March 2019 at Attachment A

 16   FBTM Award at clauses 33.1 to 33.7

 17   FBTM Award at clause 31

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