BOOT sometimes fits


BOOT sometimes fits

For enterprise agreements to be registered, they must pass the Better Off Overall Test as assessed by the Fair Work Commission. The exercise involves assessing a balance between the pros and cons of an agreement when compared to the relevant award.


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For enterprise agreements to be registered, they must pass the better off overall test (BOOT) as assessed by the Fair Work Commission. The exercise involves assessing a balance between the pros and cons of an agreement when compared to the relevant award.

BOOT failure — public holidays not addressed
It was necessary to balance more beneficial provisions with less beneficial and to examine each employee’s position. Comparison was made of pay rates, allowances and entitlements of agreements against modern award, but found calculations did not include public holidays, so the Commission was not satisfied agreements passed the BOOT. Undertakings went some way but did not convince the Commission employees would be better off overall given less beneficial provisions.

Applications for approval dismissed.

Jasbe Caldermeade P/L Enterprise Agreement 2013 and Ors [2013] FWC 6998 (13 September 2013)

Loaded wages to cover annual leave — approved
Loaded wage rates included pro rata payment of annual leave and personal leave entitlements in this agreement. Case law was canvassed. Commissioner Bull noted that a tribunal full bench in Hull Moody had allowed a similar clause, but comments by the Federal Court’s Justice Gray in Jeld Wen had suggested the Commission not to follow the Full Bench Hull Moody decision. Commission approved this agreement. THe applicant-employer provided an undertaking that subclause concerning minimum engagement will not apply. An undertaking provided that overtime for part-time employees applied for hours in excess of roster hours of work as per relevant modern award was given. The applicant also provided modelling of a number of indicative rosters to show employees are better off overall.

Robjohn Enterprise Agreement 2013 [2013] FWCA 6685 (5 September 2013) 

BOOT met in transport agreement
TWU and ASU opposed this application. The main concern was whether agreement passed BOOT. TWU raised concern about potential for employer to reduce part-time employee hours immediately prior to a redundancy. However grievance procedure provided recourse if such action was taken. Paid parental leave provision were more beneficial. Other leave entitlements and salary packaging were more beneficial. Casual employees’ four hour minimum engagement and ability to convert to full or part-time employment was more beneficial. Commissioner did not agree with ASU objection that part-time employees only receive overtime after working 38 hours. Clause 9.2 provides overtime to be paid for hours in excess of rostered hours. Spans of hours in agreement considered to be less beneficial than corresponding award provisions. The agreement did not include two paid rest breaks. However, agreement did not cover shiftworkers and a break allowance was payable if employees work additional hours of work outside span of hours. The agreement appeared to contemplate unpaid breaks in addition to meal break. The agreement did not contain job search entitlement, living away from home allowance, district allowances or accident make up pay. The public holiday penalty was the same for all public holidays. There was no ability for substitution of public holiday. Commissioner did not see absence of job descriptions disadvantaging employees. There was nothing to suggest their absence causing difficulty in understanding job classifications. Commissioner identified several benefits and disadvantages for employees and was satisfied overall assessment of agreement benefits more than offset for every employee any disadvantage when compared to relevant award. The Commission was satisfied agreement passed the BOOT.

Federal Express (Australia) P/L and Federal Express Corporation National Enterprise Agreement 2013 [2013] FWC 6022 (27 August 2013) 

BOOT rejection to be reheard
A Full Bench of FWC noted that the basis for first instance decision was that Commissioner found agreement did not satisfy better off overall test (BOOT). The conclusion was supported by detailed mathematical modelling. The employer had not sought approval on grounds contained in s189 Fair Work Act 2009. The employer submitted it had been denied procedural fairness. The notice of listing issued for original application stated the matter was listed for hearing in Chambers. The notice of listing stated: ‘In the absence of any person indicating they wish to be heard, the agreement will nbe approved.’ The Full Bench accepted the content of the notice of listing, issued inadvertently, gave rise to legitimate expectation that agreement would be approved on basis of information and undertakings provided to the Commissioner and that there was no need to seek to be heard further. The employer was not put on notice that the information and undertakings were considered insufficient to allow the agreement to be approved. The employer was denied procedural fairness. Note: not every denial of procedural fairness at first instance entitles aggrieved appellant to new a hearing; instead, the appellant has to demonstrate it was denied an opportunity of successful outcome. The appellate court will not order a new trial if it would inevitably result in making the same order as made in the first trial. The employer did not attempt to demonstrate BOOT analysis contained in the Commissioner’s decision was flawed such that agreement should have been approved. The Full Bench did not detect any flaw in the analysis. The Full Bench accepted the employer was denied opportunity to provide further information and analysis in response to concerns about the satisfaction of the BOOT and denied opportunity to provide further undertakings. The employer should be permitted a new hearing to be given these opportunities. Permission to appeal was granted. The application for approval of agreement was remitted to Lewin C for rehearing subject to directions of the Full Bench.

Appeal by Bona Management Group P/L t/a Macxsec against decision of Lewin C of 29 May 2013 [[2013] FWC 3372[2013] FWCFB 5768 (15 August 2013)
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