1
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Loaded Rates Agreements
(AG2017/1925 AG2017/1943 AG2017/3865 AG2017/4096 AG2017/4671)
VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER LEE
COMMISSIONER HARPER-GREENWELL
SYDNEY, 28 JUNE 2018
Introduction and statutory framework
[1] This decision concerns five applications for the approval of enterprise agreements
which share a common feature, namely they provide for “loaded” or higher rates of pay which
are intended to incorporate, in part or whole, penalty rates and other monetary benefits for
which separate provision is made in the applicable modern awards. The applications were
referred to this Full Bench by the President, Justice Ross, for consideration as to how the
better off overall test (BOOT), the satisfaction of which is a requirement for approval of an
enterprise agreement under s 186(2)(d) of the Fair Work Act 2009 (FW Act) (subject to ss 189
and 190), is properly to be applied to agreements containing loaded rates. This issue has
become particularly pertinent since the Full Bench decision in Hart v Coles Supermarkets
Australia Pty Ltd,1 (Hart) in which a first instance decision to approve an agreement applying
to a major Australian retailer and its employees was quashed on appeal. The agreement in
question provided for loaded ordinary hourly rates which were higher than those in the
relevant modern award and were intended to compensate for lower penalty rates for evenings,
weekends and public holidays.2 The Full Bench found that the agreement did not pass the
BOOT because the loaded rates in the agreement disadvantaged those employees who worked
primarily at times which attracted lower penalty rates under the agreement as compared to the
award.3 We discuss Hart in greater detail later in this decision.
[2] Originally a total of eight agreement approval applications were referred to us, but
three of the applications were discontinued after the applicants were informed of the Full
Bench referral. The remaining agreements for which approval was sought were as follows:
1 [2016] FWCFB 2887
2 Ibid at [7]
3 Ibid at [33]
[2018] FWCFB 3610
DECISION
E AUSTRALIA FairWork Commission
[2018] FWCFB 3610
2
(1) Allied Security Management Enterprise Agreement 2017 (Allied Agreement)4
(2) JWT Group Services Enterprise Agreement 2017 (JWT Agreement)5
(3) PSA Security Pty Ltd Enterprise Agreement 2017 (PSA Agreement)6
(4) ALDI Prestons Agreement 2017 (Aldi Prestons Agreement)7
(5) ALDI Stapylton Agreement 2017 (Aldi Stapylton Agreement).8
[3] Enterprise bargaining is a central feature of the FW Act. The object of the FW Act set
out in s 3 identifies a number of matters (in paragraphs (a)-(g)) which are intended to “provide
a balanced framework for cooperative and productive workplace relations that promotes
national economic prosperity and social inclusion for all Australians”, one of which (in
paragraph (f)) is “achieving productivity and fairness through an emphasis on enterprise-level
collective bargaining underpinned by simple good faith bargaining obligations and clear
rules governing industrial action”. However, significantly, another matter (in paragraph (b))
is “ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and
conditions through the National Employment Standards, modern awards and national
minimum wage orders”.
[4] The legislative scheme for enterprise bargaining is contained in Pt 2-4 of the FW Act.
The objects of Pt 2-4 are set out in s 171 as follows:
171 Objects of this Part
The objects of this Part are:
(a) to provide a simple, flexible and fair framework that enables collective bargaining
in good faith, particularly at the enterprise level, for enterprise agreements that deliver
productivity benefits; and
(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise
agreements, including through:
(i) making bargaining orders; and
(ii) dealing with disputes where the bargaining representatives request
assistance; and
(iii) ensuring that applications to the FWC for approval of enterprise
agreements are dealt with without delay.
4 AG2017/3865
5 AG2017/4096
6 AG2017/4671
7 AG2017/1925
8 AG2017/1943
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[5] Division 4 Subdiv B of Pt 2-4 deals with the approval of enterprise agreements by the
Commission. Section 186 sets out the general requirements for when the Commission must
approve an enterprise agreement. The “basic rule” in this respect is set out in s 186(1) as
follows:
Basic rule
(1) If an application for the approval of an enterprise agreement is made
under subsection 182(4) or section 185, the FWC must approve the agreement under
this section if the requirements set out in this section and section 187 are met.
Note: The FWC may approve an enterprise agreement under this section with
undertakings (see section 190).
[6] Section 186(2) relevantly provides:
Requirements relating to the safety net etc.
(2) The FWC must be satisfied that:
(a) …
(b) …
(c) …; and
(d) the agreement passes the better off overall test.
…
Note 2: The FWC may approve an enterprise agreement that does not pass the
better off overall test if approval would not be contrary to the public interest
(see section 189).
…
[7] The requirements for passing the BOOT referred to in s 186(2)(d) are set out in s 193,
which provides:
193 Passing the better off overall test
When a non-greenfields agreement passes the better off overall test
(1) An enterprise agreement that is not a greenfields agreement passes the better off
overall test under this section if the FWC 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 .
FWC must disregard individual flexibility arrangement
(2) If, under the flexibility term in the relevant modern award, an individual flexibility
arrangement has been agreed to by an award covered employee and his or her
employer, the FWC must disregard the individual flexibility arrangement for the
purposes of determining whether the agreement passes the better off overall test.
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When a greenfields agreement passes the better off overall test
(3) A greenfields agreement passes the better off overall test under this section if the
FWC is satisfied, as at the test time, that 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.
Award covered employee
(4) An award covered employee for an enterprise agreement is an employee who:
(a) is covered by the agreement; and
(b) at the test time, is covered by a modern award (the relevant modern award)
that:
(i) is in operation; and
(ii) covers the employee in relation to the work that he or she is to
perform under the agreement; and
(iii) covers his or her employer.
Prospective award covered employee
(5) A prospective award covered employee for an enterprise agreement is a person
who, if he or she were an employee at the test time of an employer covered by the
agreement:
(a) would be covered by the agreement; and
(b) would be covered by a modern award (the relevant modern award) that:
(i) is in operation; and
(ii) would cover the person in relation to the work that he or she would
perform under the agreement; and
(iii) covers the employer.
Test time
(6) The test time is the time the application for approval of the agreement by the FWC
was made under subsection 182(4) or section 185.
FWC may assume employee better off overall in certain circumstances
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(7) 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.
[8] Section 189 identifies the circumstances in which the Commission may approve an
enterprise agreement that does not pass the BOOT:
189 FWC may approve an enterprise agreement that does not pass better off
overall test--public interest test
Application of this section
(1) This section applies if:
(a) the FWC is not required to approve an enterprise agreement
under section 186; and
(b) the only reason for this is that the FWC is not satisfied that the agreement
passes the better off overall test.
Approval of agreement if not contrary to the public interest
(2) The FWC may approve the agreement under this section if the FWC is satisfied
that, because of exceptional circumstances, the approval of the agreement would not
be contrary to the public interest.
Note: The FWC may approve an enterprise agreement under this section with
undertakings (see section 190).
(3) An example of a case in which the FWC may be satisfied of the matter referred to
in subsection (2) is where the agreement is part of a reasonable strategy to deal with a
short-term crisis in, and to assist in the revival of, the enterprise of an employer
covered by the agreement.
Nominal expiry date
(4) The nominal expiry date of an enterprise agreement approved by the FWC under
this section is the earlier of the following:
(a) the date specified in the agreement as the nominal expiry date of the
agreement;
(b) 2 years after the day on which the FWC approved the agreement.
[9] Section 190 sets out the circumstances in which an enterprise agreement may be
approved with undertakings:
[2018] FWCFB 3610
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190 FWC may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made
under subsection 182(4) or section 185; and
(b) the FWC has a concern that the agreement does not meet the requirements
set out in sections 186 and 187.
Approval of agreement with undertakings
(2) The FWC may approve the agreement under section 186 if the FWC is satisfied
that an undertaking accepted by the FWC under subsection (3) of this section meets
the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers
covered by the agreement if the FWC is satisfied that the effect of accepting the
undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.
FWC must seek views of bargaining representatives
(4) The FWC must not accept an undertaking under subsection (3) unless the FWC
has sought the views of each person who the FWC knows is a bargaining
representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of
undertakings that are prescribed by the regulations.
Allied Agreement
[10] The Allied Agreement covers Allied Security Management Pty Ltd (Allied), a contract
security business, and its employees in Australia. The relevant modern award is the Security
Services Industry Award 2010 (Security Award). Clause 3.2.1 provides for the classifications
and hourly base pay rates for employees under the Allied Agreement as at the date of
approval as follows:
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“3.2.1 What are the base rates of pay for the Job Levels set out in part 3.1
above?
(a) The Base Rate of Pay to be paid to all Employees will be as set out below:
FULL-TIME AND PART-TIME EMPLOYEES HOURLY BASE RATES OF PAY*
FROM THE DATE OF APPROVAL OF THE AGREEMENT BY FWC:
JOB LEVEL NON-
ROTATING
DAY
WORKER
ROTATING
WEEKDAY/
WEEKNIGHT
WORKER
NON-
ROTATING
WEEKNIGHT
SHIFT
WORKER
ROTATING
WEEKDAY/
WEEKNIGHT /
WEEKEND
WORKER
ROTATING
WEEKNIGHT/
WEEKEND
WORKER
ASM
Employee
LEVEL 1
20.89 23.07 27.02 27.84 31.79
ASM
Employee
LEVEL 2
21.50 23.77 27.79 28.17 32.13
ASM
Employee
LEVEL 3
23.24 25.77 30.22 30.73 34.50
SECURITY
MANAGER
26.05 28.22 31.80 32.56 35.90
*Note that the above Adult base rates of pay must always be equal to or above the
modern award rate as determined by FWC from time to time.”
[11] The working patterns referred to in the above table are defined in clause 3.2.1 as follows:
“WORK PATTERN DEFINITIONS – hours averaged over up to 8 weeks cycle -
- Non-Rotating Day Worker - works between 0600 hrs to 1800 hrs, Monday to
Friday.
- Rotating Weekday / Weeknight Worker - works Monday to Friday with less than
half ordinary hours worked outside day worker hours.
- Non-Rotating Weeknight Shift Worker - works Monday to Friday, outside 0600
hrs to 1800 hrs only.
- Rotating Weekday / Weeknight / Weekend Worker – works weekdays,
weeknights and weekends, but with at least a third of hours worked between 0600 hrs
to 1800 hrs, Monday to Friday, and not more than 25% of hours worked on weekends.
- Rotating Weeknight / Weekend Worker - works weeknights and weekends, but
with no more than 35% of hours worked on weekends.”
[12] Clause 3.2.1(b) provides that casual employees receive a 25% loading in addition to
the above hourly rates, and clause 3.2.1(c) provides that the rates are to be increased by 2.5%
from the first full pay period commencing on 1 July each year until the expiry of the
agreement. Clause 3.2.2 provides that “The base rates of pay set out in part 3.2.1 of this
Agreement compensate the Employee for all financial entitlements arising under this
Agreement, except as specifically provided elsewhere in the Agreement.”
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[13] Clauses 4.1.1, 4.1.2 and 4.1.3 relevantly provide that:
full-time employees may be rostered for an average of 38 hours per week over an
averaging period of up to 8 weeks, with a minimum of 7.6 hours per shift and a
maximum of 12 hours per shift;
for part-time employees, the arrangement of hours of work will be agreed in writing
on commencement and implemented on the basis of a minimum of 4 hours per week
and a maximum of 37 hours per week over an averaging period of up to 8 weeks,
with a minimum of 4 hours per shift and a maximum of 12 hours per shift;
casual employees may work a minimum of 4 hours per shift and a maximum of 10
hours per shift, which may be increased to 12 hours per shift in accordance with
clause 21.2(b)-(d) of the Security Award.
[14] The Allied Agreement does not make provision for the payment of penalty rates for
working on evenings or weekends, but clause 5.6.1 does provide for a loading of 250% of the
non-rotating day workers hourly rate for permanent employees and 275% of the non-rotating
day workers hourly rate for casual employees when working on public holidays.
[15] Clause 4.2.2 requires employees to work reasonable additional hours (that is, hours in
addition to the hours specified in clauses 4.1.1, 4.1.2 and 4.1.3) upon the provision of 24
hours’ notice (unless a lesser period of notice is mutually agreed), and clause 4.2.3 provides:
“4.2.3 Are Employees paid an additional payment for working reasonable
overtime hours?
All Employees who work overtime hours will be paid 50% in addition to the non-
rotating day worker hourly rate for the first 2 hours of overtime and 100% in addition
to their non-rotating day worker hourly rate for all hours worked thereafter. All
overtime hours on a Sunday will be paid 100% in addition to their non-rotating day
worker hourly rate. All overtime hours on a public holiday will be paid 150% in
addition to their non-rotating day worker hourly rate.”
[16] The application for approval of the Allied Agreement was accompanied by a statutory
declaration in the prescribed form (Form F17) made by Amer Awad dated 20 August 2017.
The declaration disclosed that there are 41 employees covered by the agreement, including
three females, 18 from non-English speaking backgrounds, one Aboriginal or Torres Strait
Islander, 12 part-time employees, 8 casual employees, five employees under 21 years of age
and 15 employees over 45 years of age. In answer to a question concerning the translation of
classifications, the declaration stated that the ASM Employee Level 1 related to the
classification of Security Officer Level 1 in the Security Award, Level 2 related to Security
Officer Level 2, Level 3 related to Security Officer Level 3 & 4, and Security Manager to
Security Officer Level 5.
[17] In response to the question whether the agreement contained any terms or conditions
of employment that were more beneficial than the equivalent terms and conditions in the
reference instrument (the Security Award), the declaration identified the following as more
beneficial:
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“1. The basic hourly rate for Monday to Friday day time work is higher and more
beneficial than the reference instrument which applies to all employees.
Job Level Agreement Reference Instrument
1 20.89 20.55
2 21.50 21.13
3 23.24 21.85
5 26.05 22.56
2. The agreement has a guaranteed 2.5% wage increase on 1 July each year for
the life of the agreement which applies to all employees and is more beneficial
than a potential wage increase.
3. Casual Loading (which applies to casual [sic] employees) is calculated on the
higher agreement rates rather than the reference instrument basic hourly rate.
4. Annual leave loading of 17.5% is based on the non-rotating day worker rate,
which is higher than the reference instrument.”
[18] In response to a question about whether the agreement contained any less beneficial
terms and conditions than the equivalent in the reference instrument, the declaration
answered:
“1. The agreement does not confer the same specific percentage penalty rates for
Saturday, Sunday, Night shift, and Public holiday that are provided in the
reference instrument. Instead “work pattern” rates are applicable. These apply
to all employees.
2. The agreement allows a uniform deposit to be deducted from the employee’s
salary, to be refunded on return of the uniform, which is not conferred in the
reference instrument. This applies to all employees.”
[19] A preliminary analysis as to whether the Allied Agreement satisfied the BOOT was
undertaken by the Commission’s staff under the supervision of Commissioner Lee. The
contents of that analysis were communicated to the applicant in correspondence from the
presiding member’s chambers dated 24 October 2017. The correspondence relevantly stated:
“Specifically in relation to your application, the Agreement provides loaded rates of
pay for different roster cycles which are intended to compensate employees for shift
penalties, weekend penalties, annual leave loading, allowances and other Award
entitlements not provided for in the Agreement.
The relevant roster cycles for which loaded rates are provided contain rostering
restrictions at clause 3.2.1(a) of the agreement and are as follows:
Non-Rotating Day Worker Roster – works between 0600hrs to 1800hrs,
Monday to Friday;
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Rotating Weekday/Weeknight Worker Roster – works Monday to Friday
with less than half ordinary hours worked outside day worker hours;
Non-Rotating Weeknight Shift Worker Roster – works Monday to
Friday, outside 0600hrs to 1800hrs only; and
Rotating Weekday/Weeknight/Weekend Worker Roster – works
weekdays, weeknights and weekends, but with at least a third of hours
worked between 0600 hrs to 1800 hrs, Monday to Friday, and not more
than 25% of hours worked on weekends.
Rotating Weeknight/Weekend Worker Roster – works weeknights and
weekends, but with no more than 35% of hours worked on weekends.
The loaded rates of pay under the agreement range from 1.68% to 59.15% above the
applicable base rate of pay in the Security Services Industry Award 2010 (‘the
Award’), depending on the roster pattern which the employee is working on. The
Commission makes the following comments with respect to the BOOT.
If there is strict compliance with the rostering restrictions in the agreement, the
Commission notes that employees under the agreement are marginally better off
overall when considering only the absence of shift and weekend penalties from their
loaded rates. This is illustrated by the model below for permanent Level 1 employees
working a 38 hour week on the ‘Non-Rotating Day Worker Roster’:
Agreement
Ordinary Rate $20.89
Award
Ordinary Rate $20.54
Hours Loading weekly total Hours Loading
weekly
total
NRDWR Rate 38 100% $793.82 Ordinary Time 38 100% $780.52
Annual Leave Yes $61.06 Annual Leave Yes $60.04
Leave Loading Yes $10.69 Leave Loading Yes $10.51
Totals 38.00 Hrs $865.57 Totals 38.00 Hrs $851.07
However, the Commission is concerned that the better off overall assessment for these
employees may be affected by the following reductions in entitlements under the
agreement when compared with the Award:
Part time provisions at clause 4.1.2 of the agreement appear to be less
beneficial than their entitlements under clause 10.4 of the Award with
respect to the setting of regular hours and the ability to vary the regular
hours for part time employees. Additionally, part time employees do not
appear to be entitled to overtime for work in excess of agreed hours.
Rosters are provided 3 days in advance where practicable whereas the
Award requires 7 days’ notice of roster.
No job search entitlements on termination and redundancy
Employees do not always appear to get paid rest breaks consistently with
the Award under clause 4.4.3 of the agreement.
Direction of annual leave provisions at clause 5.1.5 of the agreement are
less beneficial than the provisions in the Award
No maximum weekly hours for casuals in clause 4.1.3 of the agreement.
As such casuals are not entitled to overtime for work in excess of 38
hours per week.
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Broken shift allowance under the agreement is a 2.5% loading on hours
in the second part of the broken shift rather than the flat $13.23
allowance under the Award. This may be less beneficial to employees
depending on the structuring of the broken shifts. Additionally, it is
unclear whether casual employees are entitled to broken shift allowance
under the agreement.
No 3 hour minimum payment for each part of the split shift.
Clause 6.2 requires an employee to pay an unspecified uniform deposit
which may be refunded on termination of employment. Under the Award
an employer is to provide uniforms to employees or reimburse the
employees for the cost of their uniform.
Agreement does not provide that ordinary time shifts must be separated
by a minimum break of not less than 8 hours or that there must be a
minimum of 8 hours break after overtime work.
Casuals do not appear to be entitled to the long break provisions at clause
21.4 of the Award.
No call-back entitlement under the agreement.
Additionally, the Commission is concerned about the application of the rostering
provisions in clause 3.2.1(a) of the agreement for casual employees given the
interaction between clauses 3.2.1(a) and 4.1.3 of the agreement. This is of particular
concern for casual employees given the nature of their employment is different to
permanent employment whereby they are not provided with any fixed entitlement to
hours of work. This could affect a casual employee’s ability to work to a roster and
thus fall neatly into one of the loaded rates under the agreement. For example if
casuals only worked on weekends there would be no adequate loaded rate to
compensate a casual employee for the absence of weekend penalties under the
agreement.
Finally the Commission notes the following other concerns with the agreement which
may impact on the BOOT:
Clause 4.2.1 and 4.2.2 has inconsistent terminology with some
provisions referring to “reasonable additional hours” and other
provisions referring to “reasonable overtime hours”
Clause 5.1.7(b) makes reference to a ‘salaried rate.’ However the
agreement does not otherwise reference or provide for a salaried rate.”
[20] The correspondence ended with a direction that any submissions about whether the
Agreement passed the BOOT, and any undertaking that was proposed to address the identified
concerns, be filed by a specified date
[21] In response to this correspondence, and in accordance with the directions of the
Commission, Allied lodged a written submission and undertakings on 12 November 2017
addressing the identified issues. In summary, Allied submitted:
in relation to the concerns about part-time employees, Allied had established client
relationships that provided for reasonably predictable hours of work; any roster
changes had to be agreed in writing (clause 4.1.2(b)); rosters once posted could only
be changed by mutual agreement (clause 4.3.4); and any variation to the agreed
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hours not made in advance of the release of the roster would be subject to overtime
penalties (clause 4.1.2(c));
in relation to the display of the roster and notice of a change to the roster, the
Security Award only provided that once a roster was notified, it could not be changed
without the payment of overtime or by giving seven days’ notice;
in respect of casual employees, an undertaking was proposed that casual employees
would be paid the Non-Rotating Day Worker rates and applicable penalty rates
under clause 22.3 of the Security Award; and
in relation to the concern about the provision for an unspecified deposit to be paid
for the issue of uniforms (clause 6.2), its purpose was to encourage the return of
uniforms once employment ended, and an undertaking was proposed that would set
an amount for the deposit.
[22] The text of the proposed undertakings was as follows:
“I, Amer Awad, hereby give an undertaking that the following clauses with respect to
Allied Security Management Enterprise Agreement 2017 shall be read and applied as
follows:
1.3.3 Does this Agreement exclude or modify Award conditions?
Whilst it remains in force, this Agreement shall operate to the exclusion of any other
Agreement or Award that may have application to the Employees’ employment now
or in the future unless stated otherwise in the Agreement.
2.5.10 Job Search Entitlement
A job search entitlement shall be in accordance with clauses 11.3 and 12.4 of the
Security Services Industry Award 2010.
3.2 WAGES
WORK PATTERN DEFINITIONS – hours averaged over up to 8 weeks cycle -
- Non-Rotating Day Worker - works between 0600 hrs to 1800 hrs, Monday to
Friday.
- Rotating Weekday / Weeknight Worker - works Monday to Friday with less than
half ordinary hours worked outside day worker hours.
- Non-Rotating Weeknight Shift Worker - works Monday to Friday, outside 0600
hrs to 1800 hrs only.
- Rotating Weekday / Weeknight / Weekend Worker – works weekdays,
weeknights and weekends, but with at least a third of hours worked between 0600 hrs
to 1800 hrs, Monday to Friday, and not more than 25% of hours worked on weekends.
- Rotating Weeknight / Weekend Worker - works weeknights and weekends, but
with no more than 35% of hours worked on weekends.
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*Note that where a casual Employee does not fall within the above work pattern
definitions, they will be paid the Non-Rotating Day Worker rates and relevant penalty
rates under clause 22.3 of the Security Services Industry Award 2010.
4.1.1 What are the hours of work for a full-time Employee?
(a) The arrangement of hours of work for a full-time Employee will be implemented as
follows:
- An average of 38 hours per week over an averaging period of up to 8 weeks;
- Other than for unpaid breaks, a minimum of 7.6 hours per shift and a
maximum of 12 hours per shift;
- All ordinary time worked to be within a span of 12 hours per day;
- 8 rostered days off per 4 week cycle;
- A maximum of 10 consecutive days may be worked with up to 4 rostered
days off; and
- Broken shifts may be worked with a maximum of one break of more than 1
hour between work periods per day, in which case an additional $13.23 loading
will be paid on the hours worked after the break. A minimum payment of three
hours for each period of duty shall apply.
4.1.2 What are the hours of work for a part-time Employee?
(a) The arrangement of hours of work for part-time Employees will be agreed in
writing on commencement and implemented as follows:
- A minimum of 4 hours per week and a maximum of 37 hours per week over
an averaging period of up to 8 weeks;
- Has reasonably predictable hours of work;
- Other than for unpaid breaks, a minimum of four (4) hours per shift and a
maximum of 12 hours per shift;
- All ordinary time worked to be within a span of 12 hours per day;
- A maximum of 10 consecutive days may be worked with four (4) non-
working days; and
- Broken shifts may be worked with a maximum of one break of more than 1
hour between work periods per day, in which case an additional $13.23 loading
will be paid on the hours worked after the break. A minimum payment of three
hours for each period of duty shall apply.
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(b) Any agreed variation to the hours of work for a part time Employee will be
recorded in writing and is subject to the minimum and maximum hours limitations in
(a) above.
(c) Any variation to the agreed hours in writing under part (a) & (b) not made in
advance of the release of the roster will be subject to overtime penalties provided in
part 4.2.3.
4.1.3 What are the hours of work for a casual Employee?
Other than for unpaid breaks, Casual Employees may work a minimum of four (4)
hours per shift and a maximum of 10 hours per shift. The maximum of 10 hours per
shift can be increased to 12 hours per shift if the provisions of 21.2(b)-(d) of the
Security Services Industry Award 2010 are followed.
Broken shifts may be worked with a maximum of one break of more than 1 hour
between work periods per day, in which case an additional $13.23 loading will be paid
on the hours worked after the break. A minimum payment of three hours for each
period of duty shall apply.
4.2 OVERTIME
4.2.1 What are overtime hours?
Overtime hours are hours in excess of parts 4.1.1, 4.1.2, or 4.1.3 of this Agreement.
4.2.3 Are Employees paid an additional payment for working overtime hours?
All Employees who work overtime hours will be paid 50% in addition to the non-
rotating day worker hourly rate for the first 2 hours of overtime and 100% in addition
to their non-rotating day worker hourly rate for all hours worked thereafter. All
overtime hours on a Sunday will be paid 100% in addition to their non-rotating day
worker hourly rate. All overtime hours on a public holiday will be paid 150% in
addition to their non-rotating day worker hourly rate.
4.2.2 Are Employees required to work overtime?
All Employees will be given at least 24 hours’ notice of the Employer’s requirement to
work overtime unless both parties otherwise mutually agree to a lesser period of
notice.
4.3.5 Break between shifts
Each ordinary time shift shall be separated from any subsequent ordinary time shift by
a minimum break of not less than eight (8) hours.
4.3.6 Long breaks
Regardless of the roster cycle, any Employee on a roster cycle must not be required to
work more than a total of 48 hours of ordinary time without a long break of at least 48
continuous hours.
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4.4.3 Are Employees entitled to Rest Breaks?
A paid rest break (or breaks) must be allowed on shifts of more than 4 hours. A rest
break of not less than 10 minutes on a shift of more than four hours, a rest time of not
less than 20 minutes on an 8 hour shift and not less than 30 minutes on a 12 hour shift
must be provided. The time must be allowed not earlier than four hours nor later than
five hours after the time of commencement of each shift where it is reasonably
practicable to do so.
4.4.5 Break between shifts
Each ordinary time shift shall be separated from any subsequent ordinary time shift by
a minimum break of not less than eight hours.
4.4.6 Call back
Call back provisions are in accordance with clause 21.5 of the Security Services
Industry Award 2010.
5.1.5 Can the Employer make a full-time/part-time Employee take accumulated
annual leave?
Yes. Taking accumulated annual leave will be in accordance with clause 24.5 of the
Security Services and Industry Award 2010.
5.1.7 Can accrued annual leave be cashed out?
All full-time/part-time Employees can forego an entitlement to annual leave credited
to them during each 12 month period provided that:
(a) The full-time/part-time Employee gives the Employer a written election to forgo
the amount of annual leave on each occasion; and
(b) The amount of annual leave forgone is paid at the full-time/part-time Employee’s
base rate of pay for the period forgone at the time the election is made; and
(c) The Employer authorises the full-time/part-time Employee to forgo the amount of
annual leave; and
(d) That the Employee is not entitled to forego an amount of annual leave credited to
the Employee that would result in the employee's remaining accrued entitlement to
paid annual leave being less than 4 weeks.
6.2.3 Can Allied Security Management request a deposit if you are provided a
uniform?
Yes, the Employer may deduct a deposit from your wage a sum up to the value of
$150, provided that the deposit may by agreement between you and the Employer be
paid by you over an agreed number of pay periods.
[2018] FWCFB 3610
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6.2.5 What will happen if you do not return the uniform?
Allied Security Management may keep the deposit or deduct from any monies owed to
you, an amount up to the dollar value for the uniform provided, if the uniform is not
returned or not returned in good condition. Fair wear and tear is excepted.”
JWT Agreement
[23] The JWT Agreement covers JWT Group Services Pty Ltd (JWT), a security industry
contract business, and its employees in Australia. The relevant modern award is the Security
Award. It is apparent that the JWT Agreement was drafted using the same template as the
Allied Agreement, since the two agreements are in all respects relevant to the BOOT,
virtually identical. Clause 3.2.1(a) contains the same classification structure (except the
classifications are described as “JWT Group Services Level 1” etc.) and the same rates of pay
apply for the working patterns. Clause 3.2.1(b) provides for the same 25% casual loading,
clause 3.2.1(c) provides for the same pay increases until the expiry of the agreement, and
clause 3.2.2 is the same as clause 3.2.2 of the Allied Agreement as earlier set out. Clauses
4.1.1, 4.2.2 and 4.2.3 are to the same effect as the equivalent clauses in the Allied Agreement,
as earlier summarised. The JWT Agreement likewise does not make any provision for the
payment of penalty rates on evenings or weekends, but provides for public holiday penalty
rates in clause 5.6 in the same way as clause 5.6 of the Allied Agreement. Clause 4.2.3
provides for overtime penalty rates in the same terms as clause 4.2.3 of the Allied Agreement,
as earlier set out.
[24] The application for approval of the JWT Agreement was accompanied by a statutory
declaration in the prescribed form made by Ihab Al Arnaout dated 6 September 2017. The
declaration disclosed that the business had three employees, one of whom was part-time and
none of whom was casual. The answer given to the questions on the prescribed form
concerning the translation of classifications as between the JWT Agreement and the Security
Award, and whether the agreement contained any terms or conditions of employment that
were more or less beneficial than the equivalent terms and conditions in the reference
instrument, were the same in substance as that given in respect of the Allied Agreement.
[25] A preliminary analysis as to whether the JWT Agreement satisfied the BOOT was
undertaken by the Commission’s staff under the supervision of Commissioner Lee. The
contents of that analysis were communicated to the applicant in correspondence from the
presiding member’s chambers dated 24 October 2017. It is not necessary to reproduce the
correspondence, since it raised the same concerns as the correspondence sent to Allied which
we have earlier set out. JWT lodged a written submission and proposed undertakings on 12
November 2017 in response to this correspondence. The submission was in the same terms as
the Allied submission which we have summarised above. The proposed undertakings were the
same as for Allied, but for completeness we set them out in full below:
“I, Ihab Al Arnaout, hereby give an undertaking that the following clauses with respect
to JWT Group Services Enterprise Agreement 2017 shall be read and applied as
follows:
1.3.3 Does this Agreement exclude or modify Award conditions?
[2018] FWCFB 3610
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Whilst it remains in force, this Agreement shall operate to the exclusion of any other
Agreement or Award that may have application to the Employees’ employment now
or in the future unless stated otherwise in the Agreement.
2.5.10 Job Search Entitlement
A job search entitlement shall be in accordance with clauses 11.3 and 12.4 of the
Security Services Industry Award 2010.
3.2 WAGES
WORK PATTERN DEFINITIONS – hours averaged over up to 8 weeks cycle -
- Non-Rotating Day Worker - works between 0600 hrs to 1800 hrs, Monday to
Friday.
- Rotating Weekday / Weeknight Worker - works Monday to Friday with less than
half ordinary hours worked outside day worker hours.
- Non-Rotating Weeknight Shift Worker - works Monday to Friday, outside 0600
hrs to 1800 hrs only.
- Rotating Weekday / Weeknight / Weekend Worker – works weekdays,
weeknights and weekends, but with at least a third of hours worked between 0600 hrs
to 1800 hrs, Monday to Friday, and not more than 25% of hours worked on weekends.
- Rotating Weeknight / Weekend Worker - works weeknights and weekends, but
with no more than 35% of hours worked on weekends.
*Note that where a casual Employee does not fall within the above work pattern
definitions, they will be paid the Non-Rotating Day Worker rates and relevant penalty
rates under clause 22.3 of the Security Services Industry Award 2010.
4.1.1 What are the hours of work for a full-time Employee?
(a) The arrangement of hours of work for a full-time Employee will be implemented
as follows:
- An average of 38 hours per week over an averaging period of up to 8 weeks;
- Other than for unpaid breaks, a minimum of 7.6 hours per shift and a
maximum of 12 hours per shift;
- All ordinary time worked to be within a span of 12 hours per day;
- 8 rostered days off per 4 week cycle;
- A maximum of 10 consecutive days may be worked with up to 4 rostered
days off; and
- Broken shifts may be worked with a maximum of one break of more than 1
hour between work periods per day, in which case an additional $13.23 loading
will be paid on the hours worked after the break. A minimum payment of three
hours for each period of duty shall apply.
[2018] FWCFB 3610
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4.1.2 What are the hours of work for a part-time Employee?
(a) The arrangement of hours of work for part-time Employees will be agreed in
writing on commencement and implemented as follows:
- A minimum of 4 hours per week and a maximum of 37 hours per week over
an averaging period of up to 8 weeks;
- Has reasonably predictable hours of work;
- Other than for unpaid breaks, a minimum of four (4) hours per shift and a
maximum of 12 hours per shift;
- All ordinary time worked to be within a span of 12 hours per day;
- A maximum of 10 consecutive days may be worked with four (4) non-
working days; and
- Broken shifts may be worked with a maximum of one break of more than 1
hour between work periods per day, in which case an additional $13.23 loading
will be paid on the hours worked after the break. A minimum payment of three
hours for each period of duty shall apply.
(b) Any agreed variation to the hours of work for a part time Employee will be
recorded in writing and is subject to the minimum and maximum hours limitations in
(a) above.
(c) Any variation to the agreed hours in writing under part (a) & (b) not made in
advance of the release of the roster will be subject to overtime penalties provided in
part 4.2.3.
4.1.3 What are the hours of work for a casual Employee?
Other than for unpaid breaks, Casual Employees may work a minimum of four (4)
hours per shift and a maximum of 10 hours per shift. The maximum of 10 hours per
shift can be increased to 12 hours per shift if the provisions of 21.2(b)-(d) of the
Security Services Industry Award 2010 are followed.
Broken shifts may be worked with a maximum of one break of more than 1 hour
between work periods per day, in which case an additional $13.23 loading will be paid
on the hours worked after the break. A minimum payment of three hours for each
period of duty shall apply.
4.2 OVERTIME
4.2.1 What are overtime hours?
Overtime hours are hours in excess of parts 4.1.1, 4.1.2, or 4.1.3 of this Agreement.
[2018] FWCFB 3610
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4.2.3 Are Employees paid an additional payment for working overtime hours?
All Employees who work overtime hours will be paid 50% in addition to the non-
rotating day worker hourly rate for the first 2 hours of overtime and 100% in addition
to their non-rotating day worker hourly rate for all hours worked thereafter. All
overtime hours on a Sunday will be paid 100% in addition to their non-rotating day
worker hourly rate. All overtime hours on a public holiday will be paid 150% in
addition to their non-rotating day worker hourly rate.
4.2.2 Are Employees required to work overtime?
All Employees will be given at least 24 hours’ notice of the Employer’s requirement to
work overtime unless both parties otherwise mutually agree to a lesser period of
notice.
4.3.5 Break between shifts
Each ordinary time shift shall be separated from any subsequent ordinary time shift by
a minimum break of not less than eight (8) hours.
4.3.6 Long breaks
Regardless of the roster cycle, any Employee on a roster cycle must not be required to
work more than a total of 48 hours of ordinary time without a long break of at least 48
continuous hours.
4.4.3 Are Employees entitled to Rest Breaks?
A paid rest break (or breaks) must be allowed on shifts of more than 4 hours. A rest
break of not less than 10 minutes on a shift of more than four hours, a rest time of not
less than 20 minutes on an 8 hour shift and not less than 30 minutes on a 12 hour shift
must be provided. The time must be allowed not earlier than four hours nor later than
five hours after the time of commencement of each shift where it is reasonably
practicable to do so.
4.4.5 Break between shifts
Each ordinary time shift shall be separated from any subsequent ordinary time shift by
a minimum break of not less than eight hours.
4.4.6 Call back
Call back provisions are in accordance with clause 21.5 of the Security Services
Industry Award 2010.
5.1.5 Can the Employer make a full-time/part-time Employee take accumulated
annual leave?
Yes. Taking accumulated annual leave will be in accordance with clause 24.5 of the
Security Services and Industry Award 2010.
[2018] FWCFB 3610
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5.1.7 Can accrued annual leave be cashed out?
All full-time/part-time Employees can forego an entitlement to annual leave credited
to them during each 12 month period provided that:
(a) The full-time/part-time Employee gives the Employer a written election to forgo
the amount of annual leave on each occasion; and
(b) The amount of annual leave forgone is paid at the full-time/part-time Employee’s
base rate of pay for the period forgone at the time the election is made; and
(c) The Employer authorises the full-time/part-time Employee to forgo the amount of
annual leave; and
(d) That the Employee is not entitled to forego an amount of annual leave credited to
the Employee that would result in the employee's remaining accrued entitlement to
paid annual leave being less than 4 weeks.
6.2.3 Can JWT Group Services request a deposit if you are provided a uniform?
Yes, the Employer may deduct a deposit from your wage a sum up to the value of
$150, provided that the deposit may by agreement between you and the Employer be
paid by you over an agreed number of pay periods.
6.2.5 What will happen if you do not return the uniform?
JWT Group Services may keep the deposit or deduct from any monies owed to you, an
amount up to the dollar value for the uniform provided, if the uniform is not returned
or not returned in good condition. Fair wear and tear is excepted.”
PSA Agreement
[26] The PSA Agreement covers all employees of PSA Security Pty Ltd (PSA), a contract
security business, in Australia who are classified under the agreement. The relevant modern
award is the Security Award. The PSA Agreement is the same in most relevant respects to the
Allied Agreement and the JWT Agreement, but does have some differences. Clause 3.2.1 sets
out the classifications and wage rates as follows:
“3.2.1 What are the base rates of pay for the Job Levels set out in part 3.1
above?
(a) The Base Rate of Pay to be paid to all Employees will be as set out below:
FULL-TIME AND PART-TIME EMPLOYEES HOURLY BASE RATES
OF PAY* FROM THE DATE OF APPROVAL OF THE AGREEMENT
BY FWC:
[2018] FWCFB 3610
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JOB LEVEL NON-
ROTATING
DAY
WORKER
ROTATING
WEEKDAY /
WEEKNIGHT
WORKER
NON-
ROTATING
WEEKNIGHT
SHIFT
WORKER
ROTATING
WEEKDAY /
WEEKNIGHT
/ WEEKEND
WORKER
ROTATING
WEEKNIGHT
/ WEEKEND
WORKER
PSA Level 1 20.82 22.98 26.91 27.72 31.63
PSA Level 2 21.43 23.68 27.67 28.05 31.97
PSA Level 3/4 22.92 24.87 28.63 30.04 32.90
PSA Level 5 25.95 28.10 31.64 32.40 34.54
*Note that the above Adult base rates of pay must always be equal to or above the modern
award rate as determined by FWC from time to time.”
[27] The wage rate structure in the above table, which is based on identified work patterns,
is the same as in the Allied Agreement and the JWT Agreement, but the rates of pay are
slightly lower. The work patterns are subsequently defined in clause 3.2.1 in the same way as
in the Allied Agreement and the JWT Agreement.
[28] The following provisions are the same as the equivalent provisions in the Allied
Agreement and the JWT Agreement:
clause 3.2.1(b) – casual loading;
clauses 3.2.1(c) – wage increases;
clause 3.2.2 – base rates compensate for all financial entitlements except as
specifically provided for in the agreement;
clauses 4.1.1, 4.1.2 and 4.1.3 – hours of work for full-time, part-time and casual
employees respectively;
clause 4.2.2 – requirement for employees to work reasonable additional hours;
clause 4.2.3 – overtime penalty rates; and
clause 5.6.1 – penalty rates for public holidays (with the agreement otherwise
making no provision for penalty rates for work on evenings or weekends).
[29] The application for approval of the PSA Agreement was accompanied by a statutory
declaration in the prescribed form made by Prabhjot Sawhney dated 3 October 2017. In his
declaration Mr Sawhney disclosed that the primary activity of PSA Security was security
services and that the business currently had three employees consisting of one part-time
employee and two casual employees. In response to the question of what states and territories
the agreement would be operating in, Mr Sawhney indicated all of the State and territories of
Australia.
[30] Mr Sawhney stated that there was no difference in any of the classifications between
the Security Award and PSA Agreement. In response to a question about whether the
agreement contained any more beneficial terms and conditions than the equivalent in the
reference instrument, the declaration answered that “rates of pay are higher than the award
[2018] FWCFB 3610
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rates” and the application stated that there were no terms and conditions that were less
beneficial than the equivalent in the reference instrument.
[31] A preliminary analysis as to whether the PSA Agreement satisfied the BOOT was
undertaken by the Commission’s staff under the supervision of Commissioner Lee. The
contents of that analysis were communicated to the applicant in correspondence from the
presiding member’s chambers dated 24 October 2017. The correspondence relevantly stated:
“Specifically in relation to your application, the Agreement provides loaded rates of pay
for different roster cycles which are intended to compensate employees for shift
penalties, weekend penalties, annual leave loading, allowances and other Award
entitlements not provided for in the Agreement.
The relevant roster cycles for which loaded rates are provided contain rostering
restrictions at clause 3.2.1(a) of the agreement and are as follows:
Non-Rotating Day Worker Roster –works between 0600hrs to 1800hrs,
Monday to Friday
Rotating Weekday/Weeknight Worker Roster – works Monday to Friday
with less than half ordinary hours worked outside day worker hours
Non-Rotating Weeknight Shift Worker Roster – works Monday to
Friday, outside 0600hrs to 1800hrs only
Rotating Weekday/Weeknight/Weekend Worker Roster – works
weekdays, weeknights and weekends, but with at least a third of hours
worked between 0600 hrs to 1800 hrs, Monday to Friday, and not more
than 25% of hours worked on weekends.
Rotating Weeknight/Weekend Worker Roster – works weeknights and
weekends, but with no more than 35% of hours worked on weekends.
The loaded rates of pay under the agreement range from 1.34% to 53.96%
above the applicable base rate of pay in the Security Services Industry Award
2010 (‘the Award’), depending on the roster pattern which the employee is
working on. The Commission makes the following comments with respect to
the BOOT.
If there is strict compliance with the rostering restrictions in the agreement, the
Commission notes that employees under the agreement are marginally better
off overall when considering only the absence of shift and weekend penalties
from their loaded rates. This is illustrated by the model below for permanent
Level 1 employees working a 38 hour week on the ‘Non-Rotating Day Worker
Roster’:
Agreement
Ordinary Rate $20.82
Award
Ordinary Rate $20.54
Hours Loading weekly total Hours Loading
weekly
total
NRDWR Rate 38 100% $791.16 Ordinary Time 38 100% $780.52
Annual Leave Yes $60.86 Annual Leave Yes $60.04
Leave Loading Yes $10.65 Leave Loading Yes $10.51
Totals 38.00 Hrs $862.67 Totals 38.00 Hrs $851.07
[2018] FWCFB 3610
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However, the Commission is concerned that the better off overall assessment
for these employees may be affected by the following reductions in
entitlements under the agreement when compared with the Award:
Part time provisions at clause 4.1.2 of the agreement appear to be less
beneficial than their entitlements under clause 10.4 of the Award with
respect to the setting of regular hours and the ability to vary the regular
hours for part time employees. Additionally, part time employees do not
appear to be entitled to overtime for work in excess of agreed hours.
Rosters are provided 3 days in advance where practicable whereas the
Award requires 7 days’ notice of roster.
No job search entitlements on termination and redundancy
Employees do not always appear to get paid rest breaks consistently with
the Award under clause 4.4.3 of the agreement.
Direction of annual leave provisions at clause 5.1.5 of the agreement are
less beneficial than the provisions in the Award
No maximum weekly hours for casuals in clause 4.1.3 of the agreement.
As such casuals are not entitled to overtime for work in excess of 38
hours per week.
Unclear whether casual employees are entitled to broken shift allowance
under the agreement.
No 3 hour minimum payment for each part of the split shift.
Clause 6.2 requires an employee to pay an unspecified uniform deposit
which may be refunded on termination of employment. Under the Award
an employer is to provide uniforms to employees or reimburse the
employees for the cost of their uniform.
Agreement does not provide that ordinary time shifts must be separated
by a minimum break of not less than 8 hours or that there must be a
minimum of 8 hours break after overtime work.
Casuals do not appear to be entitled to the long break provisions at clause
21.4 of the Award.
No call-back entitlement under the agreement.
Additionally, the Commission is concerned about the application of the
rostering provisions in clause 3.2.1(a) of the agreement for casual employees
given the interaction between clauses 3.2.1(a) and 4.1.3 of the agreement. This
is of particular concern for casual employees given the nature of their
employment is different to permanent employment whereby they are not
provided with any fixed entitlement to hours of work. This could affect a
casual employee’s ability to work to a roster and thus fall neatly into one of the
loaded rates under the agreement. For example if casuals only worked on
weekends there would be no adequate loaded rate to compensate a casual
employee for the absence of weekend penalties under the agreement.
Finally the Commission notes the following other concerns with the agreement
which may impact on the BOOT:
[2018] FWCFB 3610
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Clause 4.2.1 and 4.2.2 has inconsistent terminology with some
provisions referring to “reasonable additional hours” and other
provisions referring to “reasonable overtime hours”
Clause 5.1.7(b) makes reference to a ‘salaried rate’. However the
agreement does not otherwise reference or provide for a salaried rate.”
[32] The correspondence went on to direct that any submissions about whether the
Agreement passed the BOOT, and any undertaking that was proposed to address the identified
concerns, be filed by a specified date.
[33] In response to this correspondence, and in accordance with the directions of the
Commission, PSA lodged a written submission on 2 November 2017 which stated as follows
(formal parts omitted):
“PSA Security would like to provide the following submission-
PSA Security EA was taken as a Reference from the following approved Agreements-
Australian Protective Services Pty Ltd Enterprise Agreement 2017
(AG2017/622). Approved by Commissioner Lee on 04 August 2017
Security Force One Enterprise Agreement 2015 (AG2015/3438).
Approved by Commissioner Gregory on 06 November 2015.
ASF Protective Services Enterprise Agreement 2013-2017 (AG2014/90).
Approved by Commissioner Gregory on 11 March 2014.
PSA would like to request the Department to consider the PSA agreement based upon
the above approved Agreements.”
Aldi Prestons Agreement and Aldi Stapylton Agreement
[34] The Aldi Prestons Agreement and the Aldi Stapylton Agreement (Aldi Agreements)
cover identified employees of ALDI Stores, a Limited Partnership, in the Prestons Region and
Stapylton Region respectively. Aldi operates in regions each consisting of a distribution
centre and stores supplied from that distribution centre. The two agreements are largely
identical apart from their coverage provisions and some other terms which are not relevant for
the purpose of the BOOT. We will refer to the provisions of the Aldi Prestons Agreement for
the purpose of describing the principal features of both agreements and for the purpose of the
BOOT assessment except where there are differences between the two agreements. The
relevant modern awards in relation to which the BOOT must be assessed are the General
Retail Industry Award 2010 (Retail Award), the Storage Services and Wholesale Award 2010
(Storage Award), the Road Transport and Distribution Award 2010, the Manufacturing and
Associated Industries and Occupations Award 2010 and the Miscellaneous Award 2010.
[35] Clause 6 of the Aldi Prestons Agreement provides that its coverage is as follows:
“This Agreement will cover ALDI’s employees engaged to work in the Prestons
Region in the following classifications:
[2018] FWCFB 3610
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Store Manager, Assistant Store Manager, Store Management Trainee, Store
Assistant and Stock Replenisher;
Warehouse Operator, Warehouse Mechanic, Warehouse Caretaker and Palletiser;
Transport Operator;
Any other employee engaged to work in the Prestons Region with the exception of
Executive Managers, Directors and administration employees.”
[36] Clause 13, Hours of Work establishes four categories of employees: full-time, part-
time, limited roster and casual. Clause 13 provides that full-time employees “may be engaged
as either Salaried Employees or Hourly Rate Employees”. Clause 13 then provides:
“Full-time Employees will be required to work 38 hours per week plus reasonable
additional hours, on any five (5) out of seven (7) days, Monday to Sunday.
Salaried Employees will not be entitled to overtime or penalty rates, and will be
expected to work such hours as are necessary to meet the needs of the position,
including work on Saturdays, Sundays and Public Holidays as required. No additional
payments will be made for work performed on Saturdays, Sundays and Public
Holidays. Each Employee’s salary will be set taking into account the average number
of additional hours each Salaried Employee is expected to work.
Hourly Rate Employees will be entitled to overtime and penalty rates as set out in the
Schedules to this Agreement. Leave will accrue and be taken as set out in the
Schedules to this Agreement.
The reasonable additional hours to be worked by full-time employees over 38 per
week are agreed with the Employee on commencement. It is ALDI’s policy to be
flexible and receptive to requests from employees to reduce their working hours.
Therefore, in accordance with the National Employment Standards, where an
Employee wishes to reduce the hours they are required to work, the Employee will
identify the basis on which the hours to be worked are unreasonable. ALDI will not
unreasonably deny any Employee’s request to reduce their hours work. A pro rata
salary will apply to Salaried Employees based on the proportion of a 50 hour week to
the hours the Employee works. Hourly Rate Employees will receive the applicable
hourly rate and overtime and penalty rates as set out in Schedules to this Agreement. If
the Employee and ALDI cannot reach agreement on the hours of work to apply to the
Employee’s position, the Resolution of Disputes provision of this Agreement will be
followed and the parties will agree to the Fair Work Commission arbitrating and
making a binding determination to resolve this matter.”
[37] In respect of part-time employees, clause 13 provides:
“Part-time employees
Part-time Employees will work fewer than 38 hours per week on average and may be
engaged as either Salaried Employees or Hourly Rate Employees, and will receive pro
rata entitlements under this Agreement, including pro rata salary payments.
On commencement of employment, Hourly Rate Part-time Employees will be advised
of their Contract Hours and the maximum number of hours which will be paid at the
[2018] FWCFB 3610
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Bankable Hourly rate of pay for their classification. ALDI will vary these hours only
by agreement with the Employee and will take effect from the first full pay period
after agreement is reached.
It is ALDI’s policy to be flexible and receptive to requests from employees to reduce
their working hours. Therefore, in accordance with the National Employment
Standards, where an Employee wishes to reduce the hours they are required to work,
the Employee will identify the basis on which the hours to be worked are
unreasonable. ALDI will not unreasonably deny any Employee’s request to reduce
their hours work.
If the Employee and ALDI cannot reach agreement on the hours of work to apply to
the Employee’s position, the Resolution of Disputes provision of this Agreement will
be followed and the parties will agree to the Fair Work Commission arbitrating and
making a binding determination to resolve this matter.”
[38] Full-time hourly rate employees and part-time employees may be engaged on the basis
of “Bankable Hours Arrangements”. In this respect clause 13 provides:
“Bankable Hours Arrangements
Bankable Hours arrangements are available to be used by non-Casual Hourly Rate
Employees.
Employees accrue towards their Contract Hours all hours actually worked, hours on
authorised paid leave and unpaid leave, hours actually worked as overtime and on
public holidays. Any hours in excess of the Contract Hours accrued in a pay period
may be banked. Alternatively, the Employee may choose to have all Bankable Hours
paid in each period.
Hours “banked” may be paid in subsequent pay periods if the Employee wishes, or
may be used to reduce the number of Contract Hours worked in subsequent pay
periods. Where the Employee works less than their Contract Hours, his/her “banked”
hours will be used to pay the Employee the Contract Hours for the first pay period.
If the Employee does not accrue their full Contract Hours and does not have sufficient
“banked” hours he/she will still be paid his/her Contract Hours. In this case the
Employee’s “banked” hours will go into minus. All minus “banked” hours will need to
be made up using the Employee’s future excess hours prior to these excess hours being
“banked” or paid.
Overtime hours which attract an additional penalty payment and hours which attract a
shift loading may be banked, however any additional overtime penalty payment or
shift loading will be paid in the following pay period after the hours are worked.
Banked Hours will be paid at the Employee’s Bankable Hourly Rate.”
[39] In respect of the third category of employees, namely those engaged on a “Limited
Roster basis”, clause 13 provides:
“Limited Roster Arrangements
[2018] FWCFB 3610
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Part-time Employees may be engaged on a Limited Roster basis. Limited Roster
Employees will be required to nominate the days on which they are available to be
rostered at any time. The Employee may be requested by their Direct Leader to work
additional shifts as Ordinary Hours on other days not nominated by the Employee, but
may refuse this request. Employees engaged on a Limited Roster will be able to take
paid leave and receive payment for not working on a public holiday only on the agreed
days on which they are usually available to be rostered.”
[40] Finally, in relation to casual employees, clause 13 provides:
“Casual Employees
Casual Store Assistants are the only Casual Employees employed under this
Agreement.
Casual Employees may be rostered to work ordinary hours in shifts of at least three (3)
hours at any time, Monday to Sunday inclusive. By the 15th of every month, a Casual
Employee must indicate their availability to work within the span over the following
month. ALDI will use this information to roster the Employee as required to meet
business needs. Repeated refusal of shifts offered may result in ALDI not offering
further engagements to the Employee.
Casual Employees are not entitled to paid public holidays, annual, personal/carer’s,
compassionate or jury service leave. Casual Employees are entitled to unpaid carer’s
leave and unpaid compassionate leave in accordance with the National Employee
Standards and may be entitled to long service leave depending on applicable state
legislation.”
[41] Limited roster employees and casual employees under the two agreements are
reasonably comparable to part-time employees and casual employees respectively under the
five relevant awards. Full-time salaried employees are paid on the basis of what may be
characterised as a loaded annualised salary which displaces the payment of penalty rates that
would be payable under the relevant award. Full-time hourly rate employees and part-time
employees engaged on a bankable hours arrangement are a unique category. We discuss their
reference point for the purpose of the BOOT later in this decision.
[42] Clause 14 provides, among other things, that where an employee considers they are
not better off overall under the agreement than under the relevant modern award, they can
request a pay comparison over a nominated period of time, and “any shortfall in total
remuneration which would otherwise be payable under the Modern Award will be paid to the
Employee in the next pay period after the review is completed”. Any dispute about the amount
to be paid is to be dealt with under the Resolution of Disputes provision of the agreement,
with Aldi agreeing to arbitration by the Commission to resolve the matter if necessary.
[43] Clause 19 contains the following provision with respect to payment for leave
entitlements:
“Employees will be entitled to all leave entitlements in accordance with the National
Employment Standards set out in the Act, as a minimum. The payment to Employees
[2018] FWCFB 3610
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taking leave will be at a rate of pay not less than that provided under the National
Employment Standards.
Community Service Leave will be provided in accordance with the National
Employment Standards, however the provisions of this Agreement in relation to
attendance and payment for Jury Service will apply.”
[44] There are four separate schedules to the Aldi Prestons Agreement which establish
hours of work and rates of pay for salaried store employees, hourly rate store employees,
warehouse employees and transport and distribution employees respectively. Schedule 1,
Salaried Store Employees, applies to Store Managers, Assistant Store Managers and Store
Management Trainees. Part A of Schedule 1 provides, among other things, that such
managerial employees are required to work:
any five days out of seven, Monday to Sunday, as rostered;
such hours as are necessary to meet the needs of the position, including work on
Saturdays, Sundays and Public Holidays as required;
38 ordinary hours plus an average number of additional hours per week as agreed on
the commencement of employment.
[45] Part B of Schedule 1 provides for the salaries for store management employees. The
specified salaries are said to be minimum rates of pay for salaried employees “engaged to
work 50, 45 or 40 hours per week”, but this is subject to the proviso that “Employees may be
engaged to work a different number of hours per week, and would receive a pro rata payment
of the 50 hour per week salary, based on the hours they are engaged to work”. The rates of
pay for Store Managers are set out in Part B1.1 of Schedule 1 as follows:
“Rates prior to being allocated to a store to manage
Annual Salary (45 hours per week) $80,736.10
Annual Salary (40 hours per week) $71,745.73
Plus superannuation calculated in accordance with the requirements of Superannuation
Legislation. No Business Review Payment is payable.
These rates are payable whilst the Employee completes initial training in the role of
Store Manager. Employees will be allocated their own store within 6 months of
commencing in the role of Store Manager, and will receive the following payments:
Takeover of own store
On
takeover of
own store
Year 2 Year 3 Year 4 Year 7
Annual Base Salary
(50 hours per week)
$N/A $72,302.88 $79,419.20 $86,535.53 $93,651.86
Annual Base Salary
(45 hours per week)
$58,728.68 $65,085.25 $71,441.83 $77,823.73 $84,180.30
Annual Base Salary $52,194.83 $57,918.28 $63,565.75 $69,263.88 $74,911.35
[2018] FWCFB 3610
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(40 hours per week)
Plus any Business Review Payment payable.
Plus superannuation calculated in accordance with the requirements of Superannuation
Legislation.
Progression from one year to the next year occurs on the next full pay period after the
anniversary of takeover of own store.”
[46] Part B1.2, Business Review Payment, provides for Store Managers to be paid a
productivity bonus and a sales bonus calculated according to specified formulae. Relevantly
to the application of the BOOT, it provides:
“The method used by ALDI to calculate the Business Review Payment may vary at
ALDI's discretion, however for the purposes of the Better Off Overall Test, the
Business Review Payment for Store Managers, upon placement in a home Store, will
be a minimum of $570.00 per Fortnight based on Store Managers working a 50 hour
week.”
[47] The salaries for Assistant Store Managers are set out in Part B2.1 of Schedule 1 as
follows:
“Rates prior to being placed at a home store
Annual Salary (45 hours per week) $66,022.28
Annual Salary (40 hours per week) $58,703.35
Plus superannuation calculated in accordance with the requirements of Superannuation
Legislation. No Business Review Payment is payable.
These rates are payable whilst the Employee completes initial training in the role of
Assistant Store Manager. Employees will be placed in a home store within 6 months
of commencing in the role of Assistant Store Manager, and will receive the following
payments
Rates payable from being placed at a home store
On Placement Year 2
Annual Base Salary (50 hours per week) N/A $68,985.30
Annual Base Salary (45 hours per week) $57,741.00 $62,071.58
Annual Base Salary (40 hours per week) $51,359.10 $55,208.50
Plus any Business Review Payment payable
Plus superannuation calculated in accordance with the requirements of Superannuation
Legislation.”
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[48] The Business Review Payment Scheme for Assistant Store Managers in Part B2.2,
which also consists of a productivity bonus and a sales bonus, provides for a minimum
payment of $440 per fortnight based on a 50 hour week.
[49] The salary rates for Store Management Trainees are provided for in Part B.3.1 as
follows:
“The following rates of pay are set for Store Management Trainees working 40 hours
per week, including time spent in training.
Year 1 Year 2 Year 3
Annual Salary $53,050.00 $55,450.00 $59,450.00
…”
[50] Schedule 1 does not contain any provision requiring the payment of penalty rates for
working on evenings, weekends or public holidays, or for overtime. Work on public holidays
or in excess of the hours agreed on engagement are compensated for by time off in lieu (in
addition to the normal salary payment). Where the employee works less than the agreed
hours, this must be made up at a later time.
[51] Schedule 2 applies to Hourly Rate Store Employees. Part A establishes their span of
ordinary hours as being 6.00am-11.00pm Monday to Friday and 6.00am-8.00pm on
Saturday and Sunday, and provides that overtime will be paid for work in excess of 9 hours
on any one day or 76 hours in a fortnight. Additionally, it provides that “Except for Stock
Replenisher, Limited Roster or Casual employees, all work required to be performed by
Hourly Rate Employees outside the span of hours set out in Ordinary Hours above will be
paid at the rate of time and a half of the applicable Bankable Hourly Rate set out in Part B”.
Part B of Schedule 2 sets out the hourly pay rates, which are said to be “... based on the
requirement to work flexibly, and is inclusive of all allowances, including, but not limited to,
laundry, meal, dairy-room and freezer-room allowances. Where applicable, the hourly rate
also recognises the requirement to work on Saturdays and Sundays as needed”. The rates of
remuneration in Part B are as follows:
“Remuneration
Bankable Rate Per Hour
18 Years and Over
(Adult Rate)
Store Assistant working any 5 out of 7 days at non-CBD Stores $24.30
Store Assistant working any 5 out of 7 days at CBD Stores $24.40
Limited Roster Store Assistant working at non-CBD Stores 18 Years and Over
(Adult Rate)
7am-6pm Mon -Fri (Bankable Hourly Rate) $20.30
6pm-11pm Mon- Fri; 7am-8pm Sat $25.27
11pm-7am Mon- Sat; 8pm Sat-12am Sun;12am- 7am Mon $30.25
All day Sunday (midnight to midnight) $40.19
Public Holidays $50.14
Limited Roster Store Assistant working at CBD Stores 18 Years and Over
(Adult Rate)
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7am-6pm Mon -Fri (Bankable Hourly_ Rate) $20.50
6pm-11pm Mon- Fri;7am-8pm Sat $25.27
11pm-7am Mon- Sat; 8pm Sat-12am Sun; 12am - 7am Mon $30.25
All day Sunday (midnight to midnight) $40.19
Public Holidays $50.14
Stock Replenisher working at non-CBD Stores 18 Years and Over
(Adult Rate)
7am-6pm Mon -Fri(Bankable Hourly Rate) $20.30
6pm-11pm Mon- Fri; 7am-8pm Sat $25.27
11pm-7am Mon - Sat; 8pm Sat-12am Sun; 12am - 7am Mon $30.25
All day Sunday (midnight to midnight) $40.19
Public Holidays $50.14
Stock Replenisher working at CBD Stores 18 Years and Over
(Adult Rate)
7am-6pm Mon -Fri (Bankable Hourly Rate) $20.50
6pm-11pm Mon- Fri; 7am-8pm Sat $25.27
11pm-7am Mon - Sat; 8pm Sat-12am Sun; 12am - 7am Mon $30.25
All day Sunday (midnight to midnight) $40.19
Public Holidays $50.14
Casual Store Assistant working at non-CBD Stores 18 Years and Over
(Adult Rate)
7am - 11pm Mon- Fri (Bankable Hourly Rate) $25.30
11pm - 7am Mon- Sat; 11pm Sat- 12am Sun;12am- 7am Mon $34.65
7am - 6pm Sat $27.12
6pm - 11pm Sat $30.61
All day Sunday (midnight to midnight) $40.08
Public Holidays $54.24
Casual Store Assistant working at CBD Stores 18 Years and Over
(Adult Rate)
7am - 11pm Mon- Fri (Bankable Hourly Rate) $25.40
11pm - 7am Mon- Sat;11pm Sat - 12am Sun;12am- 7am Mon $34.65
7am - 6pm Sat $27.12
6pm - 11pm Sat $30.61
All day Sunday (midnight to midnight) $40.08
Public Holidays $54.24
…”
[52] Part B goes on to provide that “Casual rates of pay are inclusive of casual loading and
payment in lieu of annual leave”. Junior rates are as follows:
“Junior Employees
Junior Employees are aged under 19 years and will receive Junior rates of pay.
% of Adult Rate
Employees aged 16 years and under 70%
Employees aged 17 years 80%
Junior Employees will progress to the next pay rate in the next full pay period after
their birthday.”
[2018] FWCFB 3610
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[53] Part B of Schedule 2 also provides for a $9.00 per hour allowance when a Store
Assistant deputises for a Store Manager, and a $12.00 per hour Sunday Loading for
employees who work on Sundays except for Stock Replenishers, Limited Roster and Casual
employees.
[54] Schedule 2 does not otherwise make provision for the payment of penalty rates for
working on evenings or weekends. In respect of public holidays, Part C provides:
“Except for Stock Replenisher, Limited Roster and Casual Employees, where
Employees work on a public holiday, they will be paid at double the Bankable
Hourly Rate set out in Part B. Stock Replenisher, Limited Roster and Casual
Employees will receive the payment for Public Holidays set out in Part B. No
overtime is separately payable on public holidays. If non-Casual Hourly Rate Store
Employees do not work on a public holiday, the Employee will receive payment of
their Notional Shift Hours at the Bankable Hourly Rate set out in Part B.”
[55] Schedule 3 applies to Warehouse Operators, Warehouse Mechanics, Warehouse
Caretakers and Palletisers. Part A provides that such employees may be engaged as Hourly
Rate Employees and may be required to work at any time on any day from Monday to
Sunday, with their hours being averaged over a fortnight period. A shift worker under the
Schedule is defined as being someone “who is required to work regularly outside the hours of
5.00am and 6.00pm - i.e. they are in receipt of a shift loading for all shifts worked on
Monday-Friday”. Overtime is payable for all work in excess of 9 hours on any one day or 40
hours in one week, and “will be paid at the rate of time and a half of the Bankable Hourly
Rate as set out in Part B”. Part B provides for the following rates of pay:
“Hourly Rate Warehouse Employees
These rates include all allowances such as but not limited to, chiller allowance, dairy
allowance, first aid allowance, meal allowance and laundry allowance, except any
Additional Allowances payable as detailed below.
Warehouse Operator available to work any 5 out of 7 days – Bankable Hourly
Rate
Rate per hour Year 1 Year 2 Year 3 Year 4
Monday to Friday (5.00am-6.00pm) N/A $32.60 $33.20 $35.00
Warehouse Mechanic available to work any 5 out of 7 days – Bankable Hourly
Rate
Rate per hour Year 1 Year 2 Year 3 Year 4
Monday to Friday (5.00am-6.00pm) N/A $32.60 $33.20 $35.00
Palletiser available to work any 5 out of 7 days – Bankable Hourly Rate
Rate per hour Monday to Friday (5.00am-6.00pm) $28.60
Warehouse Caretaker available to work any 5 out of 7 days – Bankable Hourly
Rate
[2018] FWCFB 3610
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Rate per hour Monday to Friday (5.00am-6.00pm) $28.40
...”
[56] Part B also provides for additional allowances: Freezer Allowances ($2.95 per hour),
Section Leader Allowance ($3.80 per hour), Assistant Section Leader Allowance ($1.80 per
hour) and Forklift Allowance ($0.10 per hour). It also provides for shift loadings and penalty
rates as follows:
“Shift loadings
Calculated based on Bankable Hourly Rate
Shift Loading – Monday to Friday (6.00pm – 12.00am) +15%
Shift Loading – Monday to Friday (12.00am – 5.00am) +20%
Shift Loading – all Saturday +50%
Shift Loading – all Sunday +100%
Penalty Rates
Calculated based on Bankable Hourly Rate
Penalty Rate – Public Holiday (excluding Good Friday and Christmas Day) +100%
Penalty Rate – Good Friday and Christmas Day +200%
...”
[57] Regarding public holidays, Schedule 3 states that where an Hourly Rate Warehouse
Employee works on a public holiday they will be paid in accordance with Part B and that no
overtime is separately payable on public holidays. It also states that if Hourly Rate Warehouse
Employees do not work on a public holiday, the Employee will receive payment of their
Notional Shift Hours, paid at the Bankable Hourly Rate and Employees who receive payment
of a Section Leader allowance will receive those allowances.
[58] Schedule 4 applies to all employees “engaged to work in ALDI’s Transport and
Distribution function”. Part A provides that “Employees engaged on an hourly basis (Hourly
Rate Employees) may be required to work at any time on any day in a Week, Monday to
Sunday. Hours of work will be averaged over a fortnightly period. Employees will work on
average up to five (5) shifts in a week.” In respect of overtime, Part A provides:
“Overtime
All work performed in excess of:
10 ordinary hours in any one shift; or
50 ordinary hours in one week, will be Overtime and will be paid at the rate of time
and a half of the Bankable Hourly Rate as set out in Part B.”
[59] Part B of Schedule 4 provides for the following rates of pay:
“Hourly Rate Employees
[2018] FWCFB 3610
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Transport Operator employed to drive a Heavy Rigid (HR) Vehicle – Bankable Hourly
Rate
Rate per hour
Monday to Friday (5.00am-6.00pm) $30.95
This rate includes all allowances such as but not limited to, chiller allowance, freezer
allowance, dairy allowance, fork-lift allowance, tail-gate allowance, first aid
allowance, meal allowances, and laundry allowances, except any Additional
Allowances payable as detailed below.
Progression to Transport Operator employed to drive a Heavy Combination (HC)
Vehicle is based on completion of qualifications and Aldi offering a role to the
Employee.
Transport Operator employed to drive a Heavy Combination (HC) Vehicle –
Bankable Hourly Rate
Rate per hour
Monday to Friday (5.00am-6.00pm) $32.60
This rate includes all allowances such as but not limited to, chiller allowance, freezer
allowance, dairy allowance, fork-lift allowance, tail-gate allowance, first aid
allowance, meal allowances, and laundry allowance, except any Additional
Allowances payable as detailed below.
This rate is payable even where the Transport Operator employed to drive a Heavy
Combination Vehicle drives an HR vehicle.”
[60] Part B of Schedule 4 also provides for a B-Double Allowance ($1.35 per hour), a
Section Leader Allowance ($3.80 per hour) and an Assistant Section Leader Allowance
($1.80 per hour). Shift loadings and penalty rates are provided for as follows:
“Shift loadings
Calculated based on Bankable Hourly Rate
Shift Loading – Monday to Friday (6.00pm – 12.00am) +12.5
Shift Loading – Monday to Friday (12.00am – 5.00am) +25
Shift Loading – all Saturday +50%
Shift Loading – all Sunday +100%
Penalty Rates
Calculated based on Bankable Hourly Rate
Penalty Rate – Public Holiday (excluding Good Friday and Christmas Day) +100%
Penalty Rate – Good Friday and Christmas Day +200%
...”
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[61] Schedules 2, 3 and 4 provide, with respect to hourly rate employees, that they would
be paid for each day of leave taken based on the “Employee’s Notional Shift Hours”. They
each go on to provide in this respect:
“Employees taking Annual Leave or Personal/Carer's Leave may request additional
leave hours to be paid on a Leave Day where the Employee has sufficient accrued
leave and where the expected shift for which they will be absent is greater than their
Notional Shift Hours. The maximum leave hours to be paid per shift will not exceed
the total hours which otherwise would have been worked on that shift.”
[62] The expression “Notional Shift Hours” is defined in clause 33 as follows:
“Notional Shift Hours are assigned based on Contract Hours for the purposes of
calculating public holiday and Leave Day payments. Hourly Rate Employees entitled
to payment when absent from work on a public holiday or Leave Day will receive
payment of their Notional Shift Hours for that day.
Contract Hours per Fortnight Notional Shift Hours
21 Contract Hours 4.0 hours
30 Contract Hours 4.75 hours
40 Contract Hours 5.25 hours
50 Contract Hours 5.5 hours
55 Contract Hours 6.0 hours
60 Contract Hours 6.5 hours
70 Contract Hours 7.25 hours
76 Contract Hours 8.0 hours
80 Contract Hours 9.75 hours
90 Contract Hours 9.75 hours
96 Contract Hours 10.0 hours
...”
[63] A preliminary analysis as to whether the Aldi Prestons Agreement and the Aldi
Stapylton Agreement satisfied the BOOT was undertaken by the Commission’s staff under
the supervision of Commissioner Lee. The contents of that analysis were communicated to
Aldi in correspondence from the presiding member’s chambers dated 20 September 2017. The
correspondence concerning the Aldi Prestons Agreement relevantly stated (formal parts
omitted):
“Specifically in relation to your application, the Commission is concerned that
employees do not appear to be better off overall under the Agreement because the
loaded rates of pay do not appear to be high enough to compensate employees for a
range of modern award entitlements not provided for in the Agreement. Specifically:
Overtime entitlements for part-time employees
In relation to General Retail Industry Award 2010 (the GRIA)- covered employees:
o The amount and nature of the Business Review Payment (BRP) payable
under the Agreement
o In relation to salaried employees and certain hourly rate employees, the
following:
Agreed additional hours
[2018] FWCFB 3610
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Time off in lieu (TOIL) entitlements
Absence of overtime and penalty rates
Expected hours of work
o Duties performed by Store Management Trainee (Year 3) employees
o The span of ordinary hours and penalty rate entitlements for Schedule 2-
covered employees
o Meal and other allowances, including first aid, travelling, cold work and
laundry allowances.
In addition to the concerns listed above, which have been raised in the Commission’s
previous correspondence to the parties, the Commission has the following further
concerns in relation to the BOOT:
Notional Shift Hours: The Commission notes that an Agreement covered
employee is to be paid for a fixed number of hours (notional shift hours) per shift,
rather than for that employee’s rostered ordinary hours, when absent due to a public
holiday or when on paid leave. The Commission notes that this may result in
Agreement covered employees receiving payment for a lower number of hours than
the number mandated by the National Employment Standards (NES). As modern
award payments for leave and absence due to public holidays are generally
calculated with reference to the NES, the Commission is concerned that the practice
of paying employees only for notional shift hours may have negative BOOT
implications.
Bankable Hours: The Commission is concerned that the bankable hours provisions
of the Agreement, in particular those contained in cl.13, may have negative BOOT
implications. In particular, the Commission is concerned that the Agreement
provisions:
o do not appear to limit the number of negative or “minus” hours that an
employee can accrue
o may allow for ordinary hours of work to be averaged over an undefined
and potentially lengthy period of time
o may allow employees to be required to work a significant number of
excess hours without additional payment
o do not require that an employee be offered their full quantum of contract
hours regardless of whether they have a negative bankable hours balance
Definition of bankable hourly rate: The Commission notes that there appears to
be some uncertainty in relation to the definition of Bankable Hourly Rate (BHR) in
the Agreement. Clause 33 of the Agreement states that the BHR excludes all
allowances, whereas Schedule 2, 3 and 4 state that the BHR’s listed in those
schedules are inclusive of several allowances.
Classification matching- Store Management Trainees: The Commission notes
that, in the response to q.3.3 of the Form F17 submitted to the Commission in this
matter, the applicant has stated that:
o Year 1 Store Management Trainees perform work equivalent to work
performed by Level 1 employees under the GRIA
o Year 2 Store Management Trainees perform work equivalent to work
performed by Level 3 employees under the GRIA, and
[2018] FWCFB 3610
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o Year 3 Store Management Trainees perform work equivalent to work
performed by Level 4 employees under the GRIA
The Commission seeks submissions in support of this statement, given that the
Agreement does not appear to restrict the duties performed by Store Management
Trainees in the first two years of their traineeships
The Commission notes that concerns in relation to the following issues were raised in
the Commission’s previous correspondence dated 8 August 2017:
Agreement signature requirements
Steps taken to notify employees of the time, place and method of the vote
Dispute settlement term
Definition of a shift worker for the purposes of the NES
The Commission notes that you have provided submissions and a revised signature
page in response to these concerns.
In connection with the hearing of your application, you are directed to file in the
Commission by 5.00pm on 18 October 2017:
1. Any written submissions you wish to make concerning whether the Agreement
passes the BOOT; and
2. Any undertaking you wish to propose to address the concerns identified above.
If undertakings are to be provided, they must be:
provided in a form that can be published with the Agreement (for example, as a
standalone document separate to any response given to these preliminary findings);
and
signed by the employer in accordance with the Regulations, in particular, regulation
2.07, which states: “For subsection 190(5) of the Act, an undertaking relating to an
enterprise agreement must be signed by each employer who gives the undertaking”.
You should also seek the views of all bargaining representatives regarding any
proposed undertakings.”
[64] Correspondence concerning the Aldi Stapylton Agreement was also sent to Aldi on 20
September 2017. That correspondence raised the same concerns in relation to the BOOT, as
well as two procedural issues, which had also been raised in previous correspondence dated 8
August 2017, concerning the timely distribution of the Notice of Employee Representational
Rights and the steps taken to notify employees of the time, place and method of the vote.
[65] On 25 October 2017, Aldi filed joint submissions in relation to the Aldi Agreements in
response to the correspondence. Those submissions are summarised later in this decision. Aldi
did not propose any undertakings to resolve the concerns raised in the correspondence.
General submissions
[2018] FWCFB 3610
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[66] Submissions addressing the broader issues arising in these proceedings were invited
from the Peak Councils and the Commonwealth Minister. In addition, submissions were
received from other interested organisations.
Australian Council of Trade Unions (ACTU)
[67] The ACTU submitted that the statutory framework applying to applications for
approval of enterprise agreements focused upon the need to strike a balance in the workplace
relations system between simplicity, flexibility and fairness. Equal emphasis was placed on
achieving both productivity and fairness in bargaining, and the legislature clearly expressed
the intention to ensure that the safety net was enforceable and guaranteed.
[68] The ACTU reviewed the legislative history concerning enterprise bargaining,
including the development of the earlier “no disadvantage” test. It submitted in particular that
the Workplace Relations Act 1996 had, in relation to that test, introduced the concept of an
“overall” or global assessment of whether or not an agreement reduced an employee’s terms
and conditions of employment. In this respect, it provided that an agreement disadvantaged an
employee only if its approval would result “on balance” in a reduction in the “overall terms
and conditions” of employment of that employee under relevant designated awards or other
relevant law. The Work Choices reforms in 2005 then abolished the “no disadvantage” test
entirely, but subsequently the “fairness test” was introduced in 2007.
[69] In relation to the BOOT, the ACTU submitted that it adopted a somewhat different
formulation to the earlier “no disadvantage” test. Rather than the negatively-framed concept
of attempting to prevent or limit disadvantage to an employee, it adopted the positively-
framed concept of seeking to ensure that the employee is “better off overall”. This evidenced
an intention of the Parliament to encourage bargaining which delivers improved terms and
conditions of employment in workplaces rather than bargaining which simply does not
disadvantage employees compared with the safety net. Notwithstanding this, there were
similarities between the two tests: both required a single point in time comparison between
the terms of the proposed agreement and the relevant award, and required an overall
assessment weighing both beneficial and less beneficial terms. The BOOT assessment
conducted by the Commission was for many employees the only means by which their right
to a minimum safety net of terms and conditions was ensured. The ACTU supported a
rigorous and consistent approach to the BOOT which identified flaws in agreements,
protected the integrity of the employment safety net and encouraged the parties to negotiate in
good faith for terms and conditions which improved upon, rather than undermined, the
minimum employment safety net.
[70] In relation to the BOOT, the ACTU submitted that the following principles were well
established:
The BOOT is an overall assessment involving the identification of terms which are
more beneficial and those which are less beneficial. It is not a line by line analysis.
The BOOT does not involve an analysis of matters other than the actual terms and
conditions of the award compared with the agreement. The effect the terms and
conditions may have on the actions of the employer or employee is not relevant.
[2018] FWCFB 3610
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The correct approach is by reference to the terms and conditions of the competing
instruments, i.e. a “comparison” or an “analysis” of such terms and conditions laid
side by side.
The BOOT requires the objective testing of the award against the agreement.
The Commission must have some basis for its decision over and above generalised
satisfaction. The Commission must form its view reasonably on the material before
it.
The Commission is not bound to only consider information provided by the parties;
it can conduct its own modelling based on the terms of the agreement where
appropriate.
The Commission must decide matters such as the relevant awards for comparison
purposes and other matters relevant to the application of the BOOT, and should put
any modelling or assumptions to the parties for their submissions to enable the
matters to be tested through cross-examination of witnesses if required.
[71] Specifically in relation to loaded rates of pay, the ACTU acknowledged that an
agreement could include increased rates of this nature which compensated for award
entitlements which would otherwise apply, and the ACTU was not opposed in principle to
agreements containing wage increases which adequately compensated for reductions in other
existing conditions, where such terms were genuinely agreed. However it was the role of the
Commission to conduct an assessment in accordance with the requirements of the FW Act in
each case to ensure that wage increases were adequate to compensate for the terms and
conditions being offset. The onus was on the employer to provide the Commission with
complete and accurate information about the way in which loaded rates were calculated for
the purpose of the BOOT and, in particular, exactly what entitlements have been rolled up and
how their value has been assessed and compensated. The BOOT required an assessment of the
actual terms and conditions of the agreement, not its perceived benefits, so the availability of
a mere opportunity or chance to achieve a promotion or work more hours was not relevant.
“Preferred hours” and “reconciliation” clauses had been found not to meet the BOOT because
they sought to exchange an opportunity of receiving a benefit for an actual entitlement to
wages.
[72] Further, the ACTU submitted, the BOOT had to be applied based on the work
arrangements that were in fact permitted by the terms of the agreement. This was pertinent to
the assessment of loaded rate agreements which allowed for a wide or unlimited range of
rostering possibilities, and evidence regarding the unlikelihood of such arrangements was not
relevant. The test had to be applied to the agreement and what it allowed, not what the normal
practice was. If a certain work arrangement was not likely to be required, this should be
reflected in the terms of the agreement. The requirement that the assessment be carried out at
“test time” did not restrict consideration of what work arrangements the agreement terms will
permit in the future. If the agreement allowed for an indefinite or uncertain number of
rostering possibilities, it could not meet the BOOT (unless appropriate and lawful
undertakings were provided) because the Commission could not satisfy itself that each
employee would be better off. The BOOT required satisfaction that each award covered
employee and each prospective award covered employee would be better off overall. While it
was clear that the Commission was not required to proactively inquire into the circumstances
[2018] FWCFB 3610
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of each individual employee who is or will be covered by an agreement, in circumstances
where the Commission has been presented with evidence of even one employee who is not
better off overall under an agreement, the Commission must find that the agreement in
question does not meet the BOOT. Although not required to do so, the Commission was
permitted by s 590 to make proactive inquiries when it considered it was appropriate to do so.
Australian Chamber of Commerce and Industry (ACCI)
[73] The ACCI submitted that a proper application of the BOOT:
should not require inquiry into the circumstances of every individual employee to be
covered by the agreement and indeed this would be impossible in terms of future
employees, but should entail a comparison of the circumstances of a class of
employees if the award applied to them relative to the circumstances of that class
under the enterprise agreement;
should take a “global” approach, assessing the net impact of an agreement on the
whole rather than a “line by line” comparison with the award;
should take into account both monetary and non-monetary benefits.
[74] The “no disadvantage” test which existed in the WR Act unti1 2006 was, in practice,
highly problematic - in particular, the requirement contained in a Policy Guide published by
the Workplace Authority that an agreement would not pass the test if one or more employees
was disadvantaged by the agreement. The capacity in s 193(7) to assess the BOOT by
reference to classes of employees was intended to make abundantly clear that a proper
application of the BOOT did not require an inquiry into the circumstances of every individual
employee, and it was otherwise apparent that it was not intended for the BOOT to depart
significantly from the “no disadvantage” test that applied from 1996 to 2006. It would not be
possible in any event to consider the circumstances of each prospective employee.
[75] The ACCI submitted that the Commission should adopt a procedure in the assessment
of agreements that is efficient and pragmatic so that, for example, it was preferable to
consider the common working patterns in an industry rather than to consider rosters for all
employees within a particular class of employees, or to require an applicant to provide a
BOOT assessment for each individual employee. The objects of the FW Act did not suggest,
it was submitted, that the assessment process be administered with a level of prescription and
forensic analysis that “puts people off altogether”, but rather it should be focused on
“delivering a simple, fair and efficient approach supportive of an agreement making system
where wages and conditions are linked to productivity, enhancing flexibility as well as
employee and employer circumstances at the enterprise concerned”. Enterprise bargaining
represented an opportunity to displace the “one size fits all” character of the award structure
and to instead implement a mix of wages and conditions which are more relevant to the
employer and employees in a particular enterprise and which may drive productivity. In that
context the BOOT, it was submitted, was not intended to operate in a manner that would see
each individual entitlement assessed against the corresponding entitlement in an award but
was intended instead to operate as a global assessment. Such a global assessment should take
into account non-monetary benefits, such as flexibility in working hours.
Australian Industry Group (Ai Group)
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[76] The Ai Group submitted that the Commission had in recent times adopted an “overly
theoretical approach” to the assessment of the BOOT, including in relation to enterprise
agreements containing loaded rates. This had led to concerns amongst its members that the
Commission often took into account theoretical circumstances that were extremely unlikely to
arise given the nature of the employer’s operations, the types of employees that were
employed and the work patterns of the relevant employees, and also that employers were
being required to give undertakings in a high proportion of cases. This had proved to be a
barrier to agreement-making which had caused a reduction in the number of enterprise
agreements being made and an increase in the number of approval applications which had
been withdrawn or approved subject to undertakings, and the Ai Group urged the adoption of
a “practical approach” when agreements were assessed. The Commission’s administrative
checklist for assessing BOOT compliance focused on ten matters - pay rates, hours, part-time
employees, casual employees, shift penalties, weekend penalties, public holiday penalties,
overtime, annual leave loading and allowances - and neglected numerous other benefits
commonly found in agreements including more generous redundancy, annual leave and
personal/carer’s leave entitlements than the NES, more generous long service leave
entitlements than under State and Territory laws, paid maternity and paternity leave, paid
domestic violence leave, paid blood donor leave, paid defence force reserves leave, paid
community service leave, study leave, employee discounts on company products, higher
superannuation contributions than the Superannuation Guarantee, income protection insurance
benefits, job security provisions, access to salary packaging, trade union training entitlements,
facilities for union delegates, contributions to worker entitlement funds, accident make-up
pay, access to training and development opportunities and access to particular forms of
flexibility.
[77] The Ai Group submitted that Commission members in the past “drew extensively on
their experience and judgment when assessing enterprise agreements at the approval stage,
rather than just carrying out detailed mathematical calculations or theoretical analyses”. The
BOOT could not be reduced to a simple mathematical calculation or theoretical analysis. The
making of an enterprise agreement was often an expensive, disruptive and time-consuming
process for a business, and it was important that the Commission’s approval process
“facilitates the approval of enterprise agreements, rather than placing unnecessary
impediments in the path of employers and employees who have made enterprise agreements”.
Where an agreement contained loaded rates, the risk of the Commission adopting an overly
theoretical approach increased. For example, it might be obvious that the loaded rate will
leave employees better off if they worked, 38, 40, 50 or even 60 hours in a week; the fact that
the loaded rate would not leave employees better off if they worked 70, 80 or 90 hours in a
week should not be relevant unless there was evidence that the employees are likely to work
such extreme hours. The BOOT needed to be applied in a practical, “real world” manner
consistent with the objects of the FW Act. The Ai Group proposed the adoption of the
following set of principles to guide the Commission’s decision-making with respect to
enterprise agreement approval applications:
(1) The BOOT should be applied in a manner that is consistent with the objects in
ss 3 and 171 of the FW Act.
(2) The BOOT requires that an overall assessment is carried out by the FWC
Member. The BOOT is not a line-by-line test.
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(3) The BOOT is a point-in-time test. The relevant point-in-time is the date when
the application for approval of the agreement was made.
(4) The BOOT should only take into account the provisions of the proposed
agreement and the provisions of the relevant modern award, not extraneous matters.
(5) The BOOT is a comparison between the terms in the enterprise agreement and
the relevant award, not the practices and working arrangements that may flow from
those terms.
(6) When considering the terms of the enterprise agreement for the purposes of the
BOOT, only the classifications and types of work carried out by the employees who
are employed at the time the agreement is made and those who are likely to be
employed should be taken into account.
(7) Undertakings should only be proposed by Commission Members, and only if
necessary.
(8) The Commission should generally apply the BOOT to classes of employees
rather than individuals, in the absence of evidence that any individual is not better off
under the proposed agreement.
(9) Individual flexibility arrangements must be disregarded when applying the
BOOT.
(10) The inclusion of a flexibility in an enterprise agreement should not be regarded
as a negative when applying the BOOT in circumstances where the flexibility reflects
a facilitative provision in the award.
(11) If the Commission is not satisfied that an enterprise agreement passes the
BOOT, the Commission should consider whether the agreement should be approved
through the provisions of s.189 of the Act.
[78] In relation to the proposed principle 5, it was submitted that the Commission should
not be seeking that employers provide indicative rosters of the hours that employees will work
when assessing agreements, as these were typically work arrangements that flowed from the
terms of the enterprise agreement rather than the terms of the agreement itself. Many
businesses, particularly large businesses such as in fast food or retail, did not have standard or
indicative rosters. At the approval stage, the enterprise agreement should be assessed by the
Commission as quickly and simply as possible based on the evidence before it. The
Commission’s decision should usually be made on the materials lodged with the application,
and all applications for approval should be made available on the Commission’s website in
order to give any parties with an interest the opportunity to seek to make a submission or
provide evidence.
[79] In relation to proposed principle 6, the Ai Group submitted that non-greenfields
agreements were made between an employer and its employees, not those who could
theoretically be employed under the terms of the agreement but are never actually employed.
The definition of “prospective award covered employee” should be interpreted only as
employees who are reasonably likely to be employed under the enterprise agreement, not
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those that could theoretically be employed. In relation to proposed principle 8, the Ai Group
referred to s 193(7) of the FW Act and submitted that the application of the BOOT to logical
classes of employees, such as employees at each relevant classification level, was a logical
and practical approach. If there was no evidence before the Commission that an individual
was worse off, then the Commission should not go looking for such evidence.
National Retail Association (NRA)
[80] The NRA submitted that the correct manner in which the Commission was to apply
the BOOT involved the following requirements:
a holistic weighing-up of the various beneficial and less beneficial provisions of the
proposed agreement, avoiding attempts to quantify non-monetary benefits and instead
relying on an impressionistic assessment taking into account the views of the affected
individuals;
where it is reasonable and practicable to do so, consideration of the agreement with
respect to classes of employees and application of the evidentiary presumption under s
193(7);
when considering classes of employees, the classes should not be so narrowly defined
as to result in the Commission effectively considering individual circumstances;
the Commission was to consider evidence which might displace the evidentiary
presumption put to it by the duly-appointed bargaining representatives, but need not
and must not act inquisitorially to seek out such evidence;
regard for the relevant legislative, operational and personal circumstances as they
stand at the test time; the Commission must not hypothesise about future legislative,
operational or personal circumstances.
[81] In considering how to apply the BOOT to loaded rates of pay, the Commission should,
the NRA submitted, take into account only the operational circumstances of the employer’s
business at test time, not at some hypothetical future point in time when these circumstances
may have changed. If those operational circumstances at test time did not enliven certain
provisions of the relevant modern award, then the lack of any operational need for such
provisions ought to be taken into account in the BOOT assessment. The Commission should
refrain from requiring loaded rates of pay to compensate employees for award entitlements to
which the employees would not be entitled in the operational circumstances existing at the
test time. It was naturally the case that the Commission had to be satisfied that the loaded
rates actually compensate the relevant employees for the various monetary penalties and
loadings to which they would otherwise be entitled under the relevant award. However, in
relation to non-monetary benefits, the NRA submitted that the Commission ought avoid
assigning these a monetary value for the purpose of the comparison, but rather should have
paramount regard for the views of affected employees as put forward by their bargaining
representatives in order to make an impressionistic assessment.
Australian Retailers Association (ARA)
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[82] The ARA supported and adopted the submissions of the ACCI, and submitted that it
was necessary for the establishment of principles concerning the application of the BOOT to
agreements which contain loaded rates. Such principles were necessary because there had
been a sharp decline in the number of enterprise agreement approvals in the retail industry,
there was a clear difference between the way the BOOT was being applied prior to 2015 and
currently, and there was inconsistency in the application of the BOOT to loaded rates
agreements. The ARA identified the retail industry as a prominent user of loaded rates in
enterprise agreements. The ARA’s proposed principles were as follows:
the Commission should conduct an assessment of overall benefits and detriments
to classes of employees;
those classes of employees should be broadly, and not narrowly or overly
technically defined;
the Commission should refrain from investigating the circumstances of
individual employees unless it receives probative evidence that the
circumstances of an individual employee are not consistent with the circumstances
of the class to which that employee belongs;
the Commission should only give consideration to information provided to it
in relation to the benefits and detriments of a proposed enterprise agreement
by parties and bargaining representatives, and should not give any weight
to unsupported assertions from “strangers” to the bargaining process;
the Commission should consider the overall benefits and detriments to employees
over appropriately identified periods relevant to the class of employees in question
in establishing whether those employees are better off overall;
when disposing of its obligation to ensure prospective employees are better off
overall, the Commission should presume that the working patterns of prospective
employees will reflect those working patterns in place in the applicant employer’s
business at the test time;
the BOOT should not involve a line by line assessment of benefits and detriments,
but rather an overall assessment of employees’ position under the proposed
agreement when compared to the relevant modern award;
the Commission should take into account the value of non-monetary benefits to
employees and should take appropriate steps to apportion an appropriate value to
those non-monetary benefits; and
the evidence required by the Commission to establish that employees are better off
overall should carefully balance the need for an appropriate level of certainty as to
the circumstances of classes of employees and the object of avoiding delay in the
processing of applications for approval of enterprise agreements.
[83] Specifically, the ARA submitted that the classes of employees for the purpose of s
193(7) might appropriately be identified by reference to classification levels or employment
status (permanent or casual), and a more narrow approach to what constitutes a class of
[2018] FWCFB 3610
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employees would inevitably lead to the creation of further classes that were smaller and less
readily identifiable, and thereby lead to delays in the approval process. The presumption in s
193(7) should only be set aside where there was probative evidence before the Commission
which would cause it to conclude that the circumstances of individual employees differed
materially from the circumstances of the class of employees to which they belonged. The
procedural protections in the FW Act for individual employees should provide the
Commission with comfort that such employees have a proper opportunity to advance
probative evidence to rebut the s 193(7) presumption, and in the absence of any such evidence
the Commission should accept the evidence of the employer and make its decision regarding
the BOOT based on that evidence. “Strangers” to the bargaining process should not be
permitted to interfere with the approval process unless they can provide the Commission with
probative evidence which is likely to impact upon the Commission’s consideration of the
application for approval. Such evidence would only be probative, the ARA submitted, if it
was real evidence of the actual working patterns utilised in the operational structure of the
employer’s business, and would not include bare assertions about potential detriment relating
to working patterns which are hypothetical in nature.
[84] In assessing the BOOT in relation to loaded rates, the requirement to make the
assessment at test time meant that it was to be made in the context of the operations of the
employer’s business at test time, even in the case of prospective employees. Thus
consideration was only required of rostering patterns used as at test time, not rostering
patterns that were permissible under the agreement. Consideration of all rostering patterns
could only mean that an enterprise agreement must result in higher rates of pay for employees
at all times when they work, which would reduce productivity because the cost of labour must
increase without any attached efficiency gain. The Commission should adopt an approach
whereby prospective employees will work within the same working patterns as existing
employees at the test time.
[85] However the BOOT assessment, the ARA submitted, needed to consider the
circumstances of the relevant class of employees over an appropriate period of time. For
permanent employees on a loaded rate, the effect of the loaded rate on annual and personal
leave entitlements, for example, needed to be taken into account. For casual employees,
account needs to be taken of working patterns over a period which reflects different trading
periods in the industry.
Submissions concerning the Allied Agreement, the JWT Agreement and the PSA
Agreement
United Voice
[86] United Voice made submissions jointly addressing whether the Allied Agreement, the
JWT Agreement and the PSA Agreement passed the BOOT. In relation to the three
agreements generally, United Voice submitted that the agreements could be used to tender for
and apply to security work anywhere in Australia, including new workplaces, without any
requirement to bargain with the workforce during their 4-year nominal terms. The agreements
all contained a loaded rate structure that divided pay rates into five work patterns in
substitution for the base rates, penalties and loadings under the Security Award, and did not
contain any rigid rostering rules other than the general description of the work patterns given.
Clause 4.3.1 of each agreement provided the employer with a wide managerial discretion as to
the rostering of employees, and did not reference the work pattern descriptions on which the
[2018] FWCFB 3610
46
rates of pay were based. Further, the roster could be posted only three days in advance of the
commencement of the roster cycle, whereas the Security Award required seven days’ notice of
the roster.
[87] United Voice submitted a pay comparison for a casual employee classified at Level 2
under the Allied Agreement who is engaged to work one Sunday in a pay period for 10 hours.
The calculation showed that under the Allied Agreement the employee would be entitled to
$401.62, but under the Security Award would be entitled to $475.40, and thus was worse off
under the agreement. The result was no different for the JWT Agreement. For the PSA
Agreement, the employee would receive $399.62 under the agreement compared to $475.40
under the award. The agreements therefore did not pass the BOOT.
[88] The undertakings proposed by Allied and JWT to rectify the BOOT deficiencies
should not, it was submitted, be accepted. They did not address the issue of the rostering and
the employer discretion, and would alter the casual pay rates in a way which involved a
fundamental change to the agreements.
Allied, JWT and PSA
[89] Except for the submissions made in response to the Commission’s correspondence
concerning its BOOT concerns, to which we have earlier made reference, Allied, JWT and
PSA did not advance any written or oral submissions in support of the approval of their
respective agreements.
Submissions concerning the Aldi Agreements
Aldi
[90] In relation to its applications for approval of the Aldi Prestons Agreement and the Aldi
Stapylton Agreement, Aldi submitted that the objects of the FW Act as a whole and of Pt 2-4
specifically suggested that the legislation was directing the parties to push towards
productivity in a way which was fair to employees, and the BOOT needed to be applied
against this framework. It was uncontroversial that the Commission was required to make an
overall assessment of the benefits and detriments associated with the agreement for which
approval was sought, rather than a line by line analysis, and that the legislature had not
directed that there be a direct financial comparison so that non-monetary benefits had to be
brought into account in assessing the overall benefit and detriment. In conducting the analysis
the Commission was entitled to assume, subject to evidence, that all members of a class will
be better off if it appears the class is better off, which reinforced the notion that the
Commission was to deal with realistic situations rather than “simply musings by aggrieved
employees or their representatives in relation to potential detriments”. Heed also had to be
taken of affected employees’ assessment of any relevant detriment.
[91] Aldi also submitted that it was wrong to apply the BOOT on the basis that enterprise
agreements were simply formalised over-award arrangements, or to assume for the purpose of
the BOOT comparison that the employer would organise its operations under the relevant
award in a way which was inefficient.
[92] In response to the specific concerns raised in the Commission’s correspondence of 20
September 2017, Aldi submitted:
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In relation to overtime entitlements for part-time employees, the Aldi Agreements
provided in Schedule 2 that work in excess of contracted hours but not in excess of 9
hours per day or 38 hours per week was not paid as overtime, but could be paid or
banked at the election of the employee. In performing the BOOT analysis, it would
be wrong to assume that part-time employees would be paid for work in excess of
their rostered hours, since the actual experience in the retail industry would be that
casual employees would be engaged instead. Thus the rostering provisions were a
distinct advantage for part-time employees.
The Business Review Payments for employees engaged in store management
constituted a benefit for employees compared to the Retail Award. The guaranteed
component more than offsets any deficiency that might otherwise arise in
comparison to payment under the Retail Award, and ensures store managers are
always better off under the Aldi Agreements.
In relation to salaried store managers, there are no standard fixed rosters since these
are prepared at the store level having regard to the needs of the particular store and
its employees. However a “worst case” roster showed that a store manager would be
better off under the Aldi Agreements, except for Assistant Store Managers prior to
being placed in their own stores. There were no employees engaged or likely to be
engaged in this capacity under either agreement.
Hourly Rate Store Employees working as fully flexible hourly rate employees should
be assessed as against casual employees working the same roster under the Retail
Award. Once the leave and public holiday entitlements of such employees under the
Aldi Agreements were taken into account, such employees would be better off under
the agreements than the Retail Award. Limited Roster employees under the Aldi
Agreements were also better off than casual employees working the same roster
under the Retail Award. Aldi part-time employees also had the benefit of a
guaranteed income under the Aldi Agreements which casual employees under the
Retail Award did not have. Additionally the clause 14 mechanism for making good
shortfalls was relevant to the BOOT assessment.
In respect of notional shift hours and leave entitlements, clause 19 provided that the
payment to employees taking leave will not be less than that provided under the
NES, and an employee taking annual or personal/carer’s leave would be paid on the
basis of an “average” day - that is, their average shift length – which would
sometimes be more than an employee would have received and sometimes less.
When Salaried Store employees and employees in warehouse and transport
classifications worked hours in excess of 38, the hours in excess were treated as
ordinary hours and employees would have the benefit of those hours in all forms of
leave, unlike under the relevant awards.
The Bankable Hours provisions was considered by FWA (Boulton J) in his decisions
approving three Aldi agreements in 2013,9 and were held not to contravene s 55 of
the FW Act. They were analogous to provisions for averaging of hours in awards,
9 [2013] FWC 3495 at [56]
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albeit more beneficial. Aldi had no incentive to allow employees to fall into large
negative balances, and it was not entitled to recoup negative hours by any means
other than rostering the employee to work additional hours. It was not correct that
employees could work a significant number of excess hours without additional
payment, since employees were paid their contract hours each fortnight.
In relation to the definition of Bankable Hours, clause 33 sought to make clear that
the Bankable Hourly Rate excluded shift loadings, penalties and allowances, but
Schedules 2, 3 and 4 sought to make clear that in calculating the Bankable Hourly
Rate, a component for the nominated allowances was included. Where there were
additional allowances, penalty rates or shift loadings not included in the Bankable
Hourly Rate, the Schedules separately identified them. Any incorporated penalties
and allowances in the Bankable Hourly Rate made it an all-purpose payment which
benefited the employee when taking leave.
The matching of Store Management Trainees with the appropriate classification in
the Retail Award had not been in dispute in previous proceedings for approval of
regional Aldi enterprise agreements, and no employee had ever claimed they were
not better off under these agreements. It was not the case that Trainee Managers
were required to do more than employees in the corresponding classification in the
Retail Award, and the duties performed by Trainee Managers fitted within the
indicative duties set out in the relevant award classifications.
Shop, Distributive and Allied Employees Association (SDAEA)
[93] The SDAEA was a bargaining representative for the Aldi Agreements, but opposed
the approval of the agreements on the basis that they did not pass the BOOT. In respect of the
BOOT generally, the SDAEA submitted:
the requirement to apply the BOOT at test time was presumably to ensure that there
was no need to bring to account potential changes to the comparison award;
however it was necessary for the Commission to also look forward because it had to
test the agreement in respect of prospective employees;
as such the agreement had to be examined not only in the context of the employer’s
current operations and current rostering procedures, but also in the context of
possible rostering procedures;
in exercising the discretion which the BOOT assessment involved, the most
significant point of comparison between the award and the agreement was usually
the wages paid, and if these were lower under the agreement in some circumstances
then it was necessary to look at any beneficial terms and conditions of the agreement
which might offset this;
the BOOT analysis had to deal with the comparison between what is possible under
the agreement and what is payable under the award, and there was nothing in s 193
or elsewhere in the FW Act which required only “realistic situations” to be
considered, since what is realistic at the time the comparison is made may be quite
[2018] FWCFB 3610
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different to the position applying some years later while the agreement remained in
operation.
[94] In relation to loaded rates, prima facie the reduction of award penalty and overtime
rates in exchange for a higher ordinary hourly rate potentially benefitted only those employees
whose rosters afforded them sufficient hours at the higher ordinary rate to compensate for the
reduction when penalty/overtime hours were worked. The loaded rate may not be sufficient to
offset reduced penalty rates, especially for employees whose work is predominantly
undertaken during times which attract penalties, as the Full Bench decision in Hart10
demonstrated. However this issue could be addressed in numerous ways. Rosters could be
mandated in such a way to ensure that the increase in ordinary rates outweighed the decrease
in penalty rates, or penalty rates could be brought in line with or close to the award rates.
[95] In respect of the Aldi Agreements specifically, the SDAEA submitted:
the hourly rate of pay for part-time employees under the Aldi Agreements was not
sufficiently high to offset the disadvantage resulting from the fact that the
agreements provided for overtime penalty rates for store assistants only after nine
hours in a day or 76 hours in a fortnight, whereas the Retail Award provided for
overtime penalties to be payable for all work in excess of the part-time employee’s
agreed hours and at a higher rate after three hours overtime;
the minimum payment for the Business Review Payments did not apply to store
managers and assistant store managers who did not have a home store, or to store
manager trainees at all, and having regard to the hours they were likely to work,
store manager trainees would earn less under the Aldi Agreements than under the
Retail Award;
the clause 14 mechanism was ineffective to remedy any BOOT deficiency, for the
reasons explained in SDAEA v Beechworth Bakery;11
the Commission’s concern about the use of notional shift hours for the purpose of
leave entitlements was well founded given that Aldi had conceded that employees
would sometimes be paid less than they would under the NES when taking leave;
the bankable hours system allowed Aldi to roster employees for more hours than
they were to be paid in a given pay period, or to roster them for fewer hours and then
have them work the hours at a later date without pay, which constituted a detriment
to employees;
the provisions in the Aldi Agreements were unusual and complex, so that where
there was doubt that they passed the BOOT, the Commission could not reach a state
of satisfaction that they did; and
10 [2016] FWCFB 2887
11 [2017] FWCFB 1664 at [41]-[46]
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trainee store managers did not have any indicative duties at all (unlike under the
Retail Award), and might be called on to perform a very wide range of duties, which
was a further reason for the Aldi Agreements to fail the BOOT.
[96] The SDAEA also contended that a comparative analysis of pay under the Aldi
Agreements and the Retail Award showed that store managers, assistant store managers and
store manager trainees would be worse off in certain scenarios even without taking into
account other identified detriments. The mathematical basis for the analysis was disclosed in a
statement made by Rebecca Patena, the SDAEA’s National Industrial Officer. Aldi has not
yet been given an opportunity to cross-examine Ms Patena or to adduce evidence in reply to
her statement.12
National Union of Workers (NUW)
[97] The NUW, which was a bargaining representative for the Aldi Stapylton Agreement,
opposed the approval of that agreement on the basis that it did not pass the BOOT at least in
respect of Warehouse Employees. It submitted that the part-time employment arrangements
were not wholly contemplated or submitted by the terms of the Storage Award and, even if an
agreement with such arrangements was capable of passing the BOOT, the specific detriments
in the Aldi Stapylton Agreement meant that it could not pass the BOOT. While the base rate
for the Aldi Stapylton Agreement was higher than in the Storage Award, there were a number
of terms that were less beneficial:
the wider span of ordinary hours;
the provisions relating to when overtime penalties are paid and the rate at which they
are paid;
how shift loadings were paid and the rate at which they were paid;
the rate of weekend penalties;
hours of work arrangements for part-time employees;
the payment of annual leave loading; and
the provision of breaks.
[98] In respect of the part-time employment arrangements with the use of Bankable Hours
for warehouse employees, the NUW characterised this as “security of tenure without security
of hours”. The Storage Award provided fundamental protections for part-time employees:
reasonable predictability of hours; an agreed, regular pattern of work and agreed hours of
work; and a minimum daily engagement of three hours. However under the Aldi Stapylton
Agreement, part-time employees had no reasonable predictability of hours, the hours of work
were wholly determined by the employer without the need for agreement with the employee,
there was no guaranteed finish time on any rostered day, and there was no minimum daily
engagement at all. An arrangement of this nature was simply not envisaged by the Storage
Award. While the loaded rates provided in Schedule 3 for a warehouse employee working on
weekends were, in strict financial terms, superior to the Storage Award, once account was
taken of the non-financial detriments of the lack of security and stability associated with the
part-time arrangements, the Aldi Stapylton Agreement convincingly failed the BOOT.
12 See transcript 15 November 2017 at PNs 77-91
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[99] In support of its case, the NUW adduced evidence from Paul Joyner, a warehouse
operator employed by Aldi at its Stapylton Distribution Centre. His evidence concerned the
operation of part-time employment arrangements under the existing enterprise agreement,
which were the same as those contained in the Aldi Stapylton Agreement, at the Distribution
Centre in respect of warehouse employees. All such 160 employees were, to his knowledge,
employed on such part-time arrangements. His evidence was that:
he was contracted to work 130 hours per month;
the highest contracted hours were 153 hours per month, and the majority of
employees were contracted for 108 hours per month;
the number of hours actually worked were not guaranteed, and varied depending on
the needs of Aldi, although his pay remained the same in each pay period;
in quiet periods he had been rostered up to 13 hours short of his contract hours, with
the result that at one stage he had reached a negative balance of 78 hours;
the rosters, which were usually published a week or two in advance, only showed a
rostered day and start time, but did not show a finish time;
usually he did not know his finish time until shortly before finishing work;
usually he could reasonably expect to work a 6-hour day, but it was not unusual to be
told to stay longer only minutes before the 6 hours was up, which caused difficulty
in maintaining a work-life balance;
he disagreed with the proposition that there was “significant support from
employees” for the way Aldi rostered workers; and
he had rejected an offer to reduce his contracted hours in order to reduce his negative
balance of hours because this would reduce his fortnightly income.
Consideration – general propositions
[100] There are two well-established propositions concerning the application of the BOOT
which may be derived from previous Full Bench decisions. The first, which is essentially a
restatement of s 193(1), is that the BOOT requires a finding that each award covered
employee and prospective employee would be better off under the agreement than under the
relevant modern award.13 The requirement that “each” such employee and prospective
employee be better off overall is a rigorous one. The ordinary meaning of “each” is “every, of
two or more considered individually or one by one”.14 Thus, every award covered employee
or prospective employee must be better off overall, with the corollary that if any such
employee is not better off overall, the relevant enterprise agreement does not pass the BOOT.
Thus, in an agreement containing loaded rates in whole or partial substitution for award
13 Solar Systems Pty Ltd [2012] FWAFB 6397 at [11]; Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887 at
[6], [15]; SDAEA v Beechworth Bakery [2017] FWCFB 1664 at [11]
14 Macquarie Online Dictionary
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penalty rates, it is not sufficient that the majority of employees - even a very large majority -
are better off overall if there are any employees at all who would not be better off overall.
[101] In the case of anything other than small employers, it would be an exhaustive task to
examine the circumstances of each individual employee to reach a state of satisfaction that the
BOOT is passed. Section 193(7) substantially relieves the Commission of this burden by
permitting it to assume, if a class of employees to which a particular employee belongs would
be better off under the agreement than under the relevant modern award, that the employees
would be better off overall in the absence of evidence to the contrary. Paragraph 818 of the
Explanatory Memorandum to the Fair Work Bill 2008 contains some information as to how
this provision was envisaged to operate as follows (emphasis added):
“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.
Illustrative example
Moss Hardware and Garden Supplies Pty Ltd makes an enterprise agreement to cover
approximately 1800 employees working at its national chain of retail garden and
hardware supplies outlets. All of these employees are 'award covered employees'.
The seven classifications under the agreement broadly correlate to seven
classifications under the relevant modern award. Because there will be many
employees within each classification under the agreement and the agreement affects
each employee within a classification in the same way, FWA could group employees
together when assessing the employees against the better off overall test. It is intended
that FWA could assess a hypothetical employee in each of the classifications under the
agreement against the relevant classification under the modern award.
If FWA were satisfied that the agreement affected each employee within the
classification in the same way, and that the agreement passed the better off overall test
for the hypothetical employee within the classification, FWA could be satisfied that
the agreement passed the better off overall test for each award covered employee and
prospective award covered employee within that classification.”
[102] Section 193(7) is not prescriptive as to the nature of the classes of employees that
might be selected for the purpose of applying the BOOT, so that the Commission has to make
an evaluative judgment in that respect. However the selection of a class for the purpose of s
193(7) will only be of utility if, as the emphasised parts of the above extract from the
Explanatory Memorandum explain, the enterprise agreement affects the members of the class
in the same way such that there is likely to be a common BOOT outcome. The example used
is a class consisting of employees in a common classification, but in the case of an agreement
providing for loaded rates this class would likely not be suitable if the employees in the
classification worked a variety of roster patterns some of which attracted penalty rates under
the relevant modern award and some of which did not. Such a class would have to be further
divided into subclasses based on common patterns of working hours, taking into account
evening, weekend and/or overtime hours worked, in order to apply the BOOT to a loaded rate
[2018] FWCFB 3610
53
remuneration structure which incorporated compensation and supplanted modern award
penalty rates which would otherwise be applicable. Thus the effective application of s 193(7)
to existing employees would necessarily require an examination of existing roster patterns
worked by various categories of employees as at the test time.
[103] Greater difficulty potentially arises with respect to the requirement to apply the BOOT
to every prospective award covered employee. This requires consideration of the position of
potential employees to whom the agreement might apply in the future, and thus necessarily
involves a degree of conjecture. In the case of an agreement applying to a defined workplace
or workplaces in a substantial and mature business - for example, a major supermarket chain -
the degree of conjecture may be small because it is safe to assume that any future employees
will be employed on a type of roster pattern already applied in the business to an existing
class of employees. That is, the Commission will be in a position to make sensible predictions
about the basis upon which prospective employees might be engaged. However the position
will necessarily be different where the business is small and/or still in a developmental stage
or the agreement for which approval is sought permits employees to be engaged in a wider
range of classifications, work locations and/or roster patterns than the workforce existing as at
the test time. In that situation the basis of employment of prospective employees will not
readily be able to be extrapolated from the characteristics of any identifiable classes in the
existing workforce.
[104] The task of applying the BOOT in respect of prospective employees was discussed in
the Explanatory Memorandum as follows:
“824. The better off overall test also refers to prospective award covered employees
because sometimes an agreement may cover classifications of employees in which no
employees are actually engaged at the test time. Extending the application of the better
off overall test to these types of employees guarantees the integrity of the safety net.
Note that where an agreement covers a large number of classifications of employees
in which no employees are actually engaged there may be a question as to whether the
agreement has been genuinely agreed – see clause 188.
Illustrative example
The Moss Hardware and Garden Supplies Pty Ltd Enterprise Agreement 2010 covers
the classification of Assistant Store Manager. At the test time for the better off overall
test, Moss Hardware and Garden Supplies Pty Ltd does not employ any Assistant
Store Managers. However, it has recently announced that it will restructure its staffing
arrangements to introduce this new position. The Assistant Store Manager
classification is covered by the relevant modern award. Assistant Store Managers
employed after the agreement commences operation would therefore be prospective
award covered employees. FWA would need to be satisfied that the agreement passed
the better off overall test in respect of these persons.”
[105] The scenario described above may not present significant difficulty because the
prospective employment of persons in a classification not currently utilised has partially
crystallised to the extent that the basis upon which such persons will be employed is actually
knowable, or is at least readily foreseeable in the sense that they will be fitted into an existing
business with existing patterns of working hours. The assessment involved will be more
difficult, however, where the agreement the subject of the application for approval is of the
[2018] FWCFB 3610
54
type described in the Full Bench decision in KCL Industries Pty Ltd: “In summary, the
position is that the Agreement covers a wide range of classifications most of which have no
relevance to the work performed by KCL’s three existing employees, encompasses industries
in which KCL does not currently operate, and contains rates of pay which, even in respect of
those classifications relevant to the current employees, are not to apply to those employees.15
The agreement under consideration in KCL Industries Pty Ltd was held not to have been
genuinely agreed to by the employees who made it for a range of reasons, but as was made
clear in the Federal Court Full Court decision in Construction, Forestry, Mining and Energy
Union v John Holland Pty Ltd16 and confirmed by the High Court in ALDI Foods Pty Limited
v Shop, Distributive & Allied Employees Association,17 there is no inherent reason why an
agreement made with a very small number of employees working at a particular location
which covers a much broader range of classifications and occupations with a wide geographic
area, and which might in future cover a much larger number of employees, could not be
approved under the FW Act (provided of course that the requirement for genuine agreement is
satisfied18). In John Holland, Buchanan J interpreted the expression “the group of employees
covered by the agreement” used in relation to the “fairly chosen” approval requirement in s
186(3) as referring to the “whole class of employees to whom the agreement might in future
apply”, and said that this class “may be very difficult to evaluate or assess, depending on the
breadth of coverage specified by the terms of the agreement and, perhaps, the nature and
complexity of the employer’s business”.19 Buchanan J also referred to “The virtual
impossibility of knowing with certainty the composition of the whole group within the
potential coverage of the agreement …”.20 These observations are equally apposite to the task
of applying the BOOT to prospective employees in respect of an agreement with a scope of
coverage, classification structure and hours of work provisions which have a potential
operation that is significantly wider than the existing workforce.
[106] Where a substantial disparity of this nature exists between the current workforce as at
test time and the class of prospective employees to whom the agreement might apply in the
future, such that useful predictions as to future employment patterns may not readily be drawn
from the way in which the existing workforce operates, the starting point must necessarily be
an examination of the terms of the agreement in order to ascertain the nature and
characteristics of the employment which the agreement provides for or permits. In accordance
with established principles of the construction of agreements, the express provisions of an
enterprise agreement may be approached on the basis that they were intended to establish
binding obligations and have a practical field of operation and are not otiose.21 Thus, for
example, if an enterprise agreement makes express provision for employees to be required to
work ordinary hours on weekends, that provision cannot be ignored for BOOT purposes
simply on the basis that the employer asserts that it does not currently, and does not intend to,
make use of that provision. There may be objective evidence available which might support
the conclusion that, notwithstanding an express provision of the agreement which apparently
15 [2016] FWCFB 3048 at [36]
16 [2015] FCAFC 16
17 [2017] HCA 53 at [84]
18 See the discussion in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77 at
[142]-[153]
19 Ibid at [34] – [35]
20 Ibid at [36]
21 National Tertiary Education Union v La Trobe University [2015] FCAFC 142 at [108] per White J
[2018] FWCFB 3610
55
permits something to be done, it cannot in fact be done or is extremely unlikely to be done.
For example, a provision in an agreement applying to a retail business allowing for ordinary
hours of work to be performed at identified unsociable hours might reasonably be disregarded
for BOOT purposes if applicable laws concerning retail trading hours prohibits work being
done at the relevant times. However this is not likely to be a common circumstance.
[107] The distinction made in the Ai Group’s submissions between the terms of an
enterprise agreement and “the practices and working arrangements that may flow from those
terms” is illusory and must be rejected. The primary, and often the only, consideration which
arises in the assessment of the BOOT is a comparison between the total remuneration which
would be earned by existing and prospective employees under the agreement as compared to
the modern award. In the case of agreements which mimic the award structure of base hourly
rates and penalty rates for working ordinary hours at unsociable times and for working
overtime, the required BOOT comparison may be capable of being conducted simply by
comparing the dollar amounts of the base rates and penalty rates in the agreement as
compared to the award. However where the agreement has a different pay structure than the
award, particularly a loaded rate structure which incorporates some or all of the penalty rates
which would be payable if the award applied, no meaningful comparison can be conducted
without applying the loaded rates to the working hours patterns actually worked or reasonably
capable of being worked under the agreement. Such an exercise necessarily requires
examination of the practices and arrangements concerning the working of ordinary and
overtime hours by existing and prospective employees that flow from the terms of the
agreement.
[108] This was the approach taken by the Full Bench in Hart.22 Hart involved a challenge,
on BOOT grounds, to the approval of an enterprise agreement which applied to Coles and Bi-
Lo supermarkets across Australia, which may be regarded as constituting a large, well-
established and mature business. The nature of the remuneration structure in the agreement
under consideration was described in the following terms:
“[7] The parties understandably commenced their analysis with a consideration of the
monetary benefits under the respective instruments for working at particular times of
the day. The evidence deals with the comparison of payments under the instruments in
isolation, as well as the impact of these comparisons on actual employee rosters over
the period of the roster. Much of this evidence is non-contentious. In essence, the
Agreement provides for a higher hourly rate than the relevant award rate, but applies
lower penalty payments for evenings, weekends and public holidays.”
[109] The parties advanced their submissions, and the Full Bench determined the appeal, on
the basis of a number of sample rosters worked by existing employees of the employer. The
Full Bench described the approach it took as follows:
“[9] For the purposes of the analysis the parties led evidence regarding rosters and
earnings comparisons for employees working actual rosters at the Coles Northcote and
Benalla stores. Neither of these stores operates on a 24 hour basis, as some other
stores do, but they can be regarded as generally representative of operating
circumstances and rostering practices at most Coles stores. The data in relation to
22 [2016] FWCFB 2887
[2018] FWCFB 3610
56
these stores is therefore a convenient basis on which to apply the BOOT and assess
the relative entitlements under the Award and the Agreement from a practical
perspective. It would only be necessary to consider other rosters which may be
worked under the Agreement in the event that we consider that employees working
under the Northcote and Benalla store rosters all pass the BOOT.
[10] Mr Hart and his representatives have selected seven employees from these stores
for the purposes of more detailed analysis. It appears that these are the employees who
are most disadvantaged on a wages basis because of the particular hours that they are
rostered to work. In addition, Mr Hart has subjected his own rosters to the same
detailed analysis – a roster issued in May 2015 and a new roster issued in September
2015. Coles had the relevant calculations checked by Mr Bruno Cecchini, a Partner
with Ernst & Young. Mr Cecchini prepared a report and gave evidence on those
calculations to the Commission. Apart from rounding differences, minor differences in
annualising and the limited interpretive differences for Sundays and casuals, there is
little difference in the outcomes from the respective analyses.
[11] As one would expect as a matter of simple logic, the more hours that are worked
during times when the Agreement rates are higher, the better off an employee will be.
Conversely, the more hours worked when the Award rates are higher, the worse off the
employee will be compared to the Award. In other words, if an employee works
predominantly at nights or on weekends, the higher base rate under the Agreement will
be counterbalanced by lower penalties payable under the Agreement at these times.”
[110] No party before us submitted that the approach taken in Hart did not represent a
proper application of the BOOT in accordance with s 193, nor was there any alternative
approach suggested by which the BOOT might have been assessed in relation to an agreement
of that nature. The Ai Group, as set out above, did submit that in assessing whether
agreements passed the BOOT, the Commission should not require the employer to produce
indicative rosters of hours that employees will work under the agreement but should rely on
the materials lodged with the application for approval (that is, the standard Form F17
statutory declaration). That submission, which would amount to the Commission adopting a
“don’t ask, don’t tell” policy, is rejected. The Commission has a statutory duty, subject to ss
189 and 190, to satisfy itself that an enterprise agreement meets the approval requirements
specified in ss 186 and 187 before approving it. In the case of an agreement with a loaded rate
remuneration structure, the Commission will 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 agreement in assessing the BOOT. Also, for the
reasons already explained, the Commission may require information about the patterns of
working hours of current and prospective employees in order to assess whether the agreement
passes the BOOT. If such information is not provided in the Form F17 statutory declaration
(noting that the prescribed form does not in terms require the inclusion of such information),
it may be necessary for the Commission to request the production of such information - even
if no party appears before the Commission in opposition to the approval of the agreement.
[111] The submission made by the ARA that the requirement to assess the BOOT as at the
“test time” (being the time at which the application for approval of the relevant agreement is
made) means that only the operational circumstances of the employer (such as its work
rosters) as at that time may be considered is also rejected. The requirement to assess the
BOOT in respect of prospective as well as existing employees tells against the adoption of
[2018] FWCFB 3610
57
such an approach. Because, as the Full Court decision in John Holland made clear, it is open
to make an enterprise agreement covering classifications, occupations and work locations that
are not part of the employer’s operations as at test time, the requirement to assess the BOOT
with respect to prospective employees who might fall within such future classifications,
occupations and/or work locations must necessarily take into account how the agreement
might in practice apply when such employees are engaged in the future. The application of the
BOOT would be rendered nonsensical and ineffective with respect to such prospective
employees if only the employer’s existing operations, which did not involve the use of
prospective employees in the categories permitted by the agreement, could be taken into
account. The statutory purpose of the requirement to assess the BOOT as at the test time is,
we consider, to permit rates of pay and other conditions of employment in the agreement and
the relevant award to be compared at a fixed point of time when the terms of both are known.
Absent such a temporal requirement, the application of the BOOT would require speculation
about future changes to the provisions of the award, in circumstances where the agreement to
be assessed may also involve agreed changes such as increases in rates of pay at defined
intervals, and would involve the impossible task of making multiple comparisons for the
whole of the period in which the agreement remains in operation.
[112] The second proposition is that the BOOT requires an overall assessment to be made.
This requires the 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.23 Where the terms required to be compared bear directly upon the
remuneration of employees, the assessment is essentially a mathematical one. However the
position becomes more complex when an agreement contains provisions superior to or not
contained in the reference award conferring entitlements to non-monetary benefits, benefits
which are accessible at the employee’s choice, or monetary benefits which are contingent
upon specified events occurring. While it is necessary to take such entitlements into account
in the BOOT assessment, ascertaining the value they are to be assigned may be a difficult
task. This difficulty was adverted to in the Full Bench decision in National Tertiary
Education Industry Union v University of New South Wales24 in the following terms:
“[96] There is an obvious problem of comparing apples with oranges when it comes to
including changes to non-monetary terms and conditions into the ‘overall’ assessment
that is required by the BOOT. In such circumstances the Tribunal must simply do its
best and make what amounts to an impressionistic assessment, albeit by taking into
account any evidence about the significance to particular classes of employees covered
by the Agreement of changes to non-monetary terms that render them less beneficial
than the equivalent non-monetary term in an award.”
[113] This issue arose for consideration in Hart, albeit in the limited context of whether
benefits of these types were to be assigned sufficient value to outweigh detriments which the
Full Bench had identified for certain categories of employees in respect of direct
remuneration. The Full Bench said (emphasis added):
23 ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53 at [92]; Armacell Australia Pty
Ltd [2010] FWAFB 9985 at [41]
24 [2011] FWAFB 5163
[2018] FWCFB 3610
58
“[19] Further, some other benefits under the Agreement are not necessarily received by
all employees. Some are contingent on the choice of the employee such as:
Pre-approved leave arrangements (clause 2.4.1.b),
Blood donor leave (clause 5.4.5),
Defence service leave (clause 5.7.3).
[20] It would not be appropriate to attribute a value to these benefits on the
assumption that all employees would access these benefits. Coles submits that it is
reasonable to assume that 50% of the benefit of accessing each form of leave once per
year is a reasonable basis to value these benefits but provided no probative evidence to
substantiate that assumption. In our view, this percentage is too high and overvalues
the likely benefit to most employees. There are some groups of employees who will
receive no benefit from these provisions; for example those who cannot give blood or
who choose not to give blood or those who are not permitted to join the defence
reserve or who choose not to join the defence reserve.
[21] Other benefits can be described as contingent on the circumstances that may
occur. These include:
Accident makeup pay (clauses 3.12.1-3.12.2),
Carer’s leave (clause 5.5.3),
Compassionate leave (clause 5.6.1),
Emergency services leave (clauses 5.9.3 and 5.9.6),
Natural disaster leave (clause 5.13.3),
Redundancy pay (appendix G1.4.1).
[22] There was no evidence before us of the actual incidence of use of these provisions
by Coles employees. Nor was there any evidence of the overall incidence in Australia
of matters such as blood donation, joining the defence reserve, or utilising more that
the NES standard in respect of carer’s leave. We do not accept that we should value
these benefits on the basis that all employees will access them every year.
[23] While we consider it appropriate to have regard to these benefits, we have some
reservations about attributing a financial value to them because their take up is highly
unlikely to be universal or uniform. However, were a value to be attributed, we
consider that the assessment should be based on an assumption of much less than a
10% access to each benefit in each year. Again this is because the benefits will be
greater for some groups of employees than others depending upon matters such as age
and family circumstances. The scale of the benefits provided by the particular
provisions in respect of these matters, with the exception of accident makeup pay, in
the Agreement when compared to the Award is generally small.
[2018] FWCFB 3610
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[24] Various other benefits are almost impossible to quantify but nevertheless should
be taken into account. These include the four benefits identified by Ms Louise
Rolland, an Executive Director at Ernst & Young in her report arising from various
provisions of the Agreement. Those benefits were described by her as follows:
‘i. Support to individual wellbeing (through the provision of entitlements that
support work flexibility and surety) reducing the probability of unplanned and
premature exit from the workforce (‘Enhancing Wellbeing’)
ii. Support to undertake activities away from work (such as study) that may
lead to increased earning potential (‘Supporting Non-Work Activities’)
iii. Support to manage incidence of domestic and family violence reducing the
likelihood of job loss (‘Domestic Violence Support’)
iv. Support to manage care responsibilities while maintaining employment,
reducing the likelihood of foregoing work hours to fulfill those care
responsibilities (‘Care Responsibility Support’).’
[25] When the capacity to determine and secure working hours and leave to meet
study and caring responsibilities provided by the Agreement is compared with the
relevant provisions in the Award, there are some aspects of the Award which provide
greater flexibility and security for the employee than in the Agreement. Overall we
consider the provisions in the Agreement to be beneficial for employees but the level
of benefit is not large. We consider that the capacity to use personal leave for domestic
violence leave is a benefit in the Agreement.
[26] Coles sought to rely on the quantification of these benefits by Ms Rolland. The
values assessed by Ms Rolland amounted to the following amounts with respect to the
7 employees and Mr Hart:
T $5,727
JJ $1,429
U $6,936
G $7,238
Q $2,447
AA $4,310
EE $2,034
DHM $3,129
DHS $3,430
[27] In our view, these values are excessive and overvalue the benefits under the
Agreement. We do not accept the assumptions which underpin the calculations. For
example, we consider that relative benefits in the Agreement compared to the Award
in respect to control of working hours and leave would probably only make a minor
difference to the likelihood of:
a Coles student employee competing a qualification; or
[2018] FWCFB 3610
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a Coles employee being able to remain in employment whilst being a
carer for others; or
a Coles employee who is a victim of domestic violence remaining in
employment; or
an older Coles employee avoiding premature exit from employment.
[28] While it is appropriate to take into account these benefits, in our view, the value is
not easily quantifiable and is much lower than Ms Rolland has estimated.
[29] Other benefits under the Agreement should be taken into account based on a
realistic comparison with the terms of the Award. We have considered the tables of
these matters which were provided by Coles, the SDA, and by Mr Hart. There are
some benefits and some detriments, but overall the net benefit of matters not otherwise
dealt with is small. We also note that provisions of the Agreement, such as payment to
part-timers for additional hours worked could amount to a detriment.
[30] We accept the evidence of Mr David Baker that those employees who are
volunteers with the Country Fire Authority would value the capacity to access leave
which is provided for in the Agreement. However, there is no evidence about the
incidence of access to the leave provisions at Coles. There is also no evidence that the
leave provisions will affect the number of Coles employees who will remain or
become volunteers with the Country Fire Authority.”
[114] What the emphasised passages in the above extract from Hart demonstrate is that the
assumption cannot readily be made that non-monetary or contingent entitlements in an
agreement have the same value to all employees, because that value may differ depending
upon the personal circumstances of each individual employee. In some cases, it may be
possible to precisely identify the categories of employees who do and do not benefit from a
particular entitlement - such as the examples of leave for reservists, blood donors and bush
fire brigade volunteers referred to in the Hart decision. In other cases, such as flexibility in
working hours or time off in lieu of overtime, it will not be possible to precisely identify who
will benefit, although it may be possible as in Hart to make some broad generalisations. A
contingent benefit, such as enhanced redundancy pay, may provide a potential benefit for
most or all employees, but a realistic assessment will need to be made about the likelihood of
that benefit crystallising during the period in which the agreement for which approval is
sought is likely to remain in operation. In all cases, even where the beneficiary of an enhanced
entitlement in an agreement may be identifiable, it is likely to be difficult or impossible to
assign any monetary value to the entitlement. Thus, where an agreement involving a loaded
rate structure is involved, it is not likely that a non-monetary or contingent benefit will
compensate for any significant detriment in direct remuneration for all affected existing or
prospective employees.
[115] In summary, the following principles apply to the application of the BOOT to a loaded
rates agreement:
(1) The BOOT requires every existing and prospective award covered employee to
be better off overall under the agreement for which approval is sought than
[2018] FWCFB 3610
61
under the relevant modern award. If any such employee is not better off
overall, the agreement does not pass the BOOT.
(2) Section 193(7) permits the Commission to assume that if a class of employees
to which a particular employee belongs would be better off under the
agreement than under the relevant modern award, then the employee would be
better off overall in the absence of evidence to the contrary. However the
selection of class for the purpose of s 193(7) will only be of utility if the
agreement affects the members of the class in the same way such that there is
likely to be a common BOOT outcome. If the Commission is not satisfied on
the evidence that an existing or prospective award covered employee is not
better off overall, the Commission cannot approve the agreement, at least not
without undertakings or in the confined circumstances set out in s 189.
(3) The application of the BOOT to a loaded rates agreement will, in order for a
meaningful comparison to be made, require an examination of the practices
and arrangements concerning the working of ordinary and overtime hours by
existing and prospective employees that flow from the terms of the agreement.
This will likely require classes to be identified based on common patterns of
working hours, taking into account evening, weekend and/or overtime hours
worked.
(4) The starting point for the assessment will necessarily be an examination of the
terms of the agreement in order to ascertain the nature and characteristics of
the employment for which the agreement provides or permits. For example if
an enterprise agreement makes express provision for employees to be required
to work ordinary hours on weekends, those provisions cannot be ignored for
BOOT purposes simply because the employer asserts it does not currently
utilise those working hours or roster patterns.
(5) In the case of existing employees, this may involve an examination of existing
roster patterns worked by various classes of employees as at the test time. The
use of sample rosters to compare remuneration produced by a loaded rates pay
structure compared to the relevant modern award may be an effective method
of doing this. There may be objective evidence that a particular pattern of
working hours or roster pattern permitted by an enterprise agreement is not
practicable, or cannot or is unlikely to be worked.
(6) In the case of prospective employees, the assessment will necessarily involve a
degree of conjecture. In the case of an enterprise operating at a defined
workplace or workplaces, the Commission may be in a position to make
sensible predictions about the basis upon which prospective employees might
be engaged based on the roster patterns worked by existing employees.
However if a business is small and/or still at the development stage, or the
agreement would cover a wider range of classifications, work locations and/or
roster patterns that are not in existence as at the test time, useful predictions
may not readily be drawn from the way in which the existing workforce
operates. In that situation the assessment will require an examination of the
terms of the agreement in order to ascertain the nature and characteristics of
the employment which the agreement provides for or permits.
[2018] FWCFB 3610
62
(7) If the information concerning patterns of working hours needed to assess
whether a loaded rates agreement passes the BOOT is not contained in the
employer’s Form F17 statutory declaration accompanying the approval
application, it may be necessary for the Commission to request or require the
production of such information.
(8) The BOOT involves the making of an overall assessment as to whether an
employee would be better off under the agreement, which necessitates
identification of the terms in the agreements which are more and less beneficial
to the employee than under the relevant award.
(9) The overall assessment required will essentially be a mathematical one where
the terms being compared relate directly to remuneration. The assessment will
be more complex where the agreement contains some superior entitlements
which are non-monetary in nature, accessible at the employee’s option or
which are contingent upon specified events occurring.
(10) In respect of non-monetary, optional or contingent entitlements in an
agreement, the assumption cannot readily be made that they have the same
value for all employees. In the case of a contingent benefit, it will be necessary
to make a realistic assessment about the likelihood of the benefit crystallising
during the period in which the agreement will operate.
(11) Where a loaded rates agreement results in significant financial detriment for
existing or prospective employees compared to the relevant award, it is
unlikely that a non-monetary, optional or contingent entitlement under the
agreement will sufficiently compensate for the detriment for all affected
employees such as to enable the agreement to pass the BOOT.
[116] Having regard to the above principles, it is possible to give examples of the type of
loaded rate structures which are capable, on proper analysis, of passing the BOOT. The
examples below are based on the Security Award (the reference award for three of the five
agreements for which approval is sought in these matters), and use the Security Officer Level
1 classification rate for which the base ordinary rate at 1 July 2018 is $808.00 per week or
$21.26 per hour rounded to the nearest cent. In each case it is necessary to formulate a rate for
a specific roster scenario. In no case is any amount of overtime incorporated into the loaded
rate.
[117] Firstly, in respect of “permanent” (that is, non-casual) full-time employees, the
following tables set out a loaded rate which would pass the BOOT on the identified roster
scenario, assuming that there is no other provision in the agreement superior or inferior to the
award which is required to be taken into account:
Roster Scenario
% Rate
required to
be above
award base
rate
Loaded rate
required for
Level 1
Classification
[2018] FWCFB 3610
63
Roster Scenario
% Rate
required to
be above
award base
rate
Loaded rate
required for
Level 1
Classification
Scenario 1 – Full-time Employee working a 38 hour week.
Roster made up as follows:
1/7 of their ordinary hours worked on each day of the
week
Mon-Fri work is split evenly between night shift and
day shift.
6 public holidays are worked each year for 7.6 hours.
34% $28.49
Scenario 2 – Full-time Employee working a 38 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and 2
Sundays in a 4 week period.
Other hours worked on day shift.
6 public holidays are worked each year for 7.6 hours.
20% $25.51
Scenario 3 – Full-time Employee working a 38 hour week.
Roster is as follows:
Employees work 12 hour shifts on 2 Saturdays and 2
Sundays in a 4 week period.
Other hours worked on day shift.
6 public holidays are worked each year for 7.6 hours.
29% $27.43
Scenario 4 – Full-time Employee working a 38 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and 2
Sundays in a 4 week period.
Other hours worked on permanent night shift.
6 public holidays are worked each year for 7.6 hours.
43% $30.40
Scenario 5 – Full-time Employee working a 38 hour week.
Roster is as follows:
Employees work 12 hour shifts on 2 Saturdays and 2
Sundays in a 4 week period.
Other hours worked on permanent night shift.
6 public holidays are worked each year for 7.6 hours.
49% $31.68
[118] The above roster scenarios may also be adapted for part-time employees. If part-time
employees work a proportion of the working hours specified for any of the above rosters
consistent with the amount of hours they work each week, the loaded rate required to pass the
BOOT will be the same. For example, in Scenario 1, if a part-time employee is engaged to
work 1/7th of the contracted 30 hours per week each day Monday to Sunday, with the work
split evenly between night shift and day shift, and 6 public holidays of 6 hours each are
worked each year, the loaded rate necessary to pass the BOOT will remain at $28.49.
[119] Alternatively, loaded rates for roster scenarios specific to part-time employees may be
developed, such as the following:
[2018] FWCFB 3610
64
Roster Scenario
% Rate
Required to
be above
award base
rate
Loaded rate
required for
Level 1
Classification
Scenario 6 – Part-time Employee working a 30 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and 2
Sundays in a 4 week period.
Other hours worked on day shift.
3 public holidays are worked each year for 7.6 hours.
23% $26.15
Scenario 7 – Part-time Employee working a 30 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and 2
Sundays in a 4 week period.
Other hours worked on permanent night shift.
3 public holidays are worked each year for 7.6 hours.
45% $30.83
Scenario 8 – Part-time Employee working a 15 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and 2
Sundays in a 4 week period.
Other hours worked on day shift.
2 public holidays are worked each year for 7.6 hours.
43% $30.40
Scenario 9 – Part-time Employee working a 15 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and 2
Sundays in a 4 week period.
Other hours worked on permanent night shift.
2 public holidays are worked each year for 7.6 hours.
57% $33.38
[120] Where an agreement seeks to provide for a single loaded rate at a given classification
level, but also provides that employees may be directed to work hours which may fit into any
of the above scenarios, then it will be necessary for the loaded rate to be at least as high as the
highest rate from all of the scenarios above. Alternatively, the agreement might provide for
employees to be assigned specific roster patterns which contain express limitations on the
number or proportion of hours to be worked at certain times (such as on evenings or
weekends) which would attract the payment of penalty rates under the relevant award. Thus if
an agreement provided that a full-time or part-time employee, as the case may be, could be
assigned to any one of the above roster scenarios at any given time, then the employee would
only need to be paid the loaded rate for the scenario while on the roster in order for the
agreement to pass the BOOT. As we discuss later, this is, broadly speaking, the methodology
used in the Allied Agreement, the JWT Agreement and the PSA Agreement.
[121] The position becomes more difficult with respect to casual employees. As discussed in
the Casual and Part-time Employment Case,25 the contractual and practical incidents of casual
employment under the FW Act may vary greatly. Casual employment may consist of
25 [2017] FWCFB 3541, 269 IR 125 at [85]
[2018] FWCFB 3610
65
engagement under hourly or daily fixed term contracts, and be used for the performance of
short-term and/or intermittent work on an “on-call” basis. It may also consist of longer-term
contracts or an ongoing contract of indefinite duration (terminable in either case on short
notice), and be used for the performance of long term work with regular, rostered hours. In the
former case, the casual employee is not guaranteed work on any specified days or for any
specified duration. In an enterprise agreement which provides or permits casual employment
of this nature, it is difficult to envisage how it would be possible to provide for a loaded rate
for casual employees that was capable of passing the BOOT. This is because it would always
be possible for the casual employee, in a given pay period, to be engaged to work on a day or
at a time which would attract the payment of penalty rates under the relevant award and not to
be engaged on any other hours or at any other times. In that circumstance, if the agreement
provided for a loaded rate which was less than the highest penalty rate provided for in the
relevant award, the employee would necessarily be disadvantaged as compared to the award.
This result could only be avoided if the agreement provided for some other benefit to the
casual employee which offset the disadvantage, and/or or imposed some restriction on when a
casual employee could be engaged to work, and/or required the hours of work of a casual
employee to be balanced over time between hours which would attract the payment of penalty
rates under the relevant award and hours which would not. Any such additional provisions
would amount to a significant departure from the concept of the “on-call” casual.
[122] For an enterprise which utilises casual employees to perform regular and ongoing
work (so that casual employment is simply used as an alternative payment and entitlement
system rather than to describe engagement on a truly casual basis), an enterprise agreement
might provide casual employees with an entitlement to guaranteed hours and rosters. In that
circumstance it may be possible to construct a loaded rate for them, in the same way as for
full-time and part-time employees above, which is capable of passing the BOOT based on
particular prescribed rosters. For example, the following loaded rates (which are inclusive of
the 25% casual loading) for Level 1 casual employees covered by the Security Award who
work full-time hours would pass the BOOT if the agreement contained no offsetting
disadvantageous provisions:
Roster Scenario
% Rate
required to be
above award
base rate
Loaded rate
required for
Level 1
Classification
Scenario 10 – Casual Employee working a 38 hour week.
Roster made up as follows:
1/7 of their ordinary hours worked on each day of
the week
Mon-Fri work is split evenly between night shift
and day shift.
6 public holidays are worked each year for 7.6
hours.
59% $33.80
Scenario 11 – Casual Employee working a 38 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and
2 Sundays in a 4 week period.
Other hours worked on day shift.
6 public holidays are worked each year for 7.6
hours.
45% $30.83
[2018] FWCFB 3610
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Roster Scenario
% Rate
required to be
above award
base rate
Loaded rate
required for
Level 1
Classification
Scenario 12 – Casual Employee working a 38 hour week.
Roster is as follows:
Employees work 12 hour shifts on 2 Saturdays and
2 Sundays in a 4 week period.
Other hours worked on day shift.
6 public holidays are worked each year for 7.6
hours.
54% $32.74
Scenario 13 – Casual Employee working a 38 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and
2 Sundays in a 4 week period.
Other hours worked on permanent night shift.
6 public holidays are worked each year for 7.6
hours.
68% $35.72
Scenario 14 – Casual Employee working a 38 hour week.
Roster is as follows:
Employees work 12 hour shifts on 2 Saturdays and
2 Sundays in a 4 week period.
Other hours worked on permanent night shift.
6 public holidays are worked each year for 7.6
hours.
74% $36.99
[123] The following loaded rates (inclusive of the casual loading) would also pass the
BOOT for casual employees working 30 hours or 15 hours per week, again assuming there
were no offsetting disadvantages in the agreement):
Roster Scenario
% Rate
Required to
be above
award base
rate
Loaded rate
required for
Level 1
Classification
Scenario 15 – Casual Employee working a 30 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and
2 Sundays in a 4 week period.
Other hours worked on day shift.
6 public holidays are worked each year for 7.6
hours.
50% $31.89
Scenario 16 – Casual Employee working a 30 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and
2 Sundays in a 4 week period.
Other hours worked on permanent night shift.
6 public holidays are worked each year for 7.6
hours.
72% $36.57
[2018] FWCFB 3610
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Roster Scenario
% Rate
Required to
be above
award base
rate
Loaded rate
required for
Level 1
Classification
Scenario 17 – Casual Employee working a 15 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and
2 Sundays in a 4 week period.
Other hours worked on day shift.
6 public holidays are worked each year for 7.6
hours.
74% $36.99
Scenario 18 – Casual Employee working a 15 hour week.
Roster is as follows:
Employees work 7.6 hour shifts on 2 Saturdays and
2 Sundays in a 4 week period.
Other hours worked on permanent night shift.
6 public holidays are worked each year for 7.6
hours.
87% $39.76
[124] We emphasise that the above scenarios are not intended to be exhaustive of the
possible roster scenarios, but to give examples of the way in which loaded rates capable of
passing the BOOT might be constructed. The calculation methodology for each scenario is
contained in Schedule A to this decision.
Consideration - Allied Agreement, JWT Agreement and PSA Agreement
[125] In respect of full-time and part-time employees, the structure of the Allied Agreement,
the JWT Agreement and the PSA Agreement, by which separate loaded rates are established
for each of the identified work roster patterns, is an effective mechanism to ensure that
employees working such roster patterns are better off compared to the relevant award. As
earlier discussed, this methodology ensures that a loaded rate can be quantified in such a way
as to properly compensate an employee for the proportion of working hours which, under the
relevant award, would attract the payment of penalty rates or other loadings. The
Commission’s correspondence to Allied, JWT and PSA dated 24 October 2017, which we
have earlier set out, stated the conclusions that assessed by reference to remuneration only,
full-time and part-time employees would be better off under each agreement than under the
Security Award. No submission made since that correspondence was issued has demonstrated
error in those conclusions.
[126] There is substance to United Voice’s submission that the rostering provision in clause
4.3 of each agreement does not, in terms, interact with the work roster patterns upon which
the loaded rate remuneration structure is based and, on one reading, allows the employer a
broad discretion in the setting of work rosters. As the correspondence of 24 October 2017 to
Allied, JWT and PSA made clear, the assessment that in terms of remuneration employees
were better off under the agreements than under the Security Award assumed “strict
compliance with the rostering restrictions in the agreement”. If that assumption could not be
made because of the terms of clause 4.3 of each agreement, then the BOOT assessment would
be vitiated. However, this is an issue which we consider could be remedied by an undertaking
[2018] FWCFB 3610
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to the effect that, in rostering full-time and part-time employees, employees could only be
rostered to work according to the roster patterns identified in the pay rates table clause 3.2.1.
[127] The correspondence of 24 October 2017 identified a number of potential detriments in
the three agreements which did not directly affect the remuneration of full-time and part-time
employees but nonetheless needed to be taken into account in applying the BOOT. In the case
of the Allied Agreement and the JWT Agreement, extensive undertakings were proposed in
response to these concerns. These potential detriments, and the undertakings offered by Allied
and JWT in response, would need to be the subject of detailed consideration were it not the
case that the agreements were fundamentally defective in respect of the remuneration of
casual employees.
[128] As earlier set out, casual employees under each agreement are to be paid “the above
hourly rates for full and part-time employees” and in addition the 25% loading. The
agreements do not make clear which of the various loaded rates are to be paid, nor do they
require casual employees to be engaged in accordance with any of the specified work roster
patterns. The Commission’s correspondence of 24 October 2017 to each employer identified
this difficulty, and in particular pointed out that for casual employees who only worked on
weekends, the loaded rates would not adequately compensate for the loss of award weekend
penalty rates (with the result that the BOOT could not be passed). United Voice’s
submissions, which we have earlier set out, illustrated the shortfall that would arise for
casuals who only worked on Sundays. Neither Allied, JWT nor PSA submitted that there was
any error in the conclusion that the agreements as they stood could not pass the BOOT
because of the rates of pay for casual employees. This conclusion is an example of the general
difficulty which we earlier identified in establishing a loaded rate structure for casual
employees which is capable of passing the BOOT.
[129] We have earlier set out the undertakings proposed by Allied and JWT to meet this
concern. It proposed that casuals who were not rostered in accordance with the work roster
patterns provided for in the agreements would be paid the Non-Rotating Day Worker rates
and relevant penalty rates under clause 22.3 of the Security Award. Clause 22.3 specified the
night work, Saturday, Sunday and public holiday penalty rates payable under the award.
[130] This undertaking, if accepted, would resolve the BOOT difficulty which we have
identified. However such an undertaking may only be accepted if it meets the conditions
specified in s 190(3) of the FW Act, namely that it is not likely to cause financial detriment to
any employee covered by the agreement or result in substantial changes to the agreement. We
do not consider that either condition is satisfied. It constitutes a fundamental change to the
remuneration structure in the Allied Agreement and the JWT Agreement which was voted
upon by their respective employees, in that it moves from a loaded rate structure to a more
traditional base hourly rate and penalty rate structure. It may also leave some casual
employees worse off. For example, for an employee who worked a rotating
weekday/weeknight roster, but only worked a small proportion of hours outside day worker
hours (6.00am to 6.00pm), the addition of the 21.7% night span penalty rate for that small
proportion of hours would not compensate for the move from the rotating weekday/weeknight
worker rate ($23.07 for Level 1) to the non-rotating day worker rate ($20.89 for Level 1). We
therefore do not accept the undertakings proposed by Allied and JWT in this respect. As noted
above, no undertaking was proposed by PSA in response to the Commission’s concern about
this issue.
[2018] FWCFB 3610
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[131] The statutory declarations made in support of the applications for approval of the
Allied Agreement and the PSA Agreement disclose that both Allied and PSA currently
employ casuals. The JWT statutory declaration states that it had no casual employees at the
date of its application, but the existence of provisions for casual employment in the JWT
Agreement, the fact that it only had three employees who voted to approve the agreement but
would undoubtedly require more to service any security contract, and our general
understanding of patterns of employment in the contract security industry, would cause us to
conclude that it will in future employ casual employees. There is therefore nothing
hypothetical or unrealistic in taking casual employment into account in assessing the BOOT
for each agreement.
[132] Each of the Allied Agreement, the JWT Agreement and the PSA Agreement fails the
BOOT with respect to casual employees not assigned to a specified work roster pattern.
Neither Allied, JWT nor PSA have proposed an undertaking to rectify this which is capable of
acceptance under s 190(3). The applications for approval of the Allied Agreement, the JWT
Agreement and the PSA Agreement must therefore be dismissed.
Consideration - Aldi Agreements
[133] The major issues for resolution in respect of the applications for approval of the Aldi
Prestons Agreement and the Aldi Stapylton Agreement are whether:
(1) the agreements pass the BOOT with respect to store managers, assistant store
managers and trainee store managers covered by Schedule 1 of each
agreement, having regard to the analysis of the loaded salary rates compared to
the provisions of the Retail Award contained in the witness statement of
Rebecca Patena and the range of duties required to be performed by trainee
store managers;
(2) the pay rates for part-time employees under the unique “bankable hours
arrangements” under the agreements are capable of passing the BOOT;
(3) the “make good” provision in clause 14 of the agreements provides an effective
mechanism to remedy any BOOT concern that might arise; and
(4) the use of “notional shift hours” in respect of the payment of leave entitlements
excludes the NES in contravention of s 55 of the FW Act, and thus does not
satisfy the approval requirement in s 186(2)(c).
[134] In respect of the first issue, it is sufficient to note that the witness statement of
Rebecca Patena together with the submissions of the SDAEA have raised, at least on a prima
facie basis, concern about whether the loaded salary rates for store managers, assistant store
managers and trainee store managers are sufficient to pass the BOOT in respect of all
realistically possible work scenarios. It will therefore be necessary to hear further from the
parties as to this issue, which will include affording Aldi the opportunity to cross-examine Ms
Patena and to adduce evidence in reply to her witness statements. Directions to facilitate the
conduct of this further hearing are set out at the end of this decision.
[135] As to the second issue, the critical question which arises is whether the point of
comparison for the purpose of assessing the BOOT in relation to part-time employees is with
[2018] FWCFB 3610
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part-time employment under the Retail Award, or casual employment under that award. As
has been submitted by the SDAEA and the NUW, significant detriments under the Aldi
Agreement would need to be taken into account if the comparison was with part-time
employment under the Retail Award, in particular the lack of guaranteed and identifiable
hours of work in each week or pay period and the lack of entitlement to overtime penalty rates
for all work in excess of contracted hours (as provided for in clause 29.2(b) of the Retail
Award). However, we do not accept that part-time employment under the Retail Award is the
appropriate point of comparison. It is clear that the system of part-time employment operated
by Aldi in the Prestons and Stapylton regions and for which the Aldi Agreements provide
would not constitute part-time employment under the Retail Award if it applied to those
regions. Clauses 12.1-12.3 of the Retail Award provide:
12.1 A part-time employee is an employee who:
(a) works less than 38 hours per week; and
(b) has reasonably predictable hours of work.
12.2 At the time of first being employed, the employer and the part-time employee
will agree, in writing, on a regular pattern of work, specifying at least:
o the hours worked each day;
o which days of the week the employee will work;
o the actual starting and finishing times of each day;
o that any variation will be in writing;
o minimum daily engagement is three hours; and
o the times of taking and the duration of meal breaks.
12.3 Any agreement to vary the regular pattern of work will be made in writing before
the variation occurs.
[136] Having regard to the relevant provisions of the Aldi Agreements and the evidence of
Paul Joyner, it is clear that Aldi’s system of part-time employment is inconsistent with the
above provision, in that it does not involve reasonably predictable hours of work; does not
require agreement at the commencement of employment upon a regular pattern of work
specifying the days of work, the hours to be worked on each day or the starting and finishing
times; and does not require any change to this to be by agreement with the employee.
However it does not follow from this that Aldi’s part-time employment system is simply not
permitted by the Retail Award and is for that reason alone to be regarded as failing the BOOT.
Clause 12.6 of the award provides:
12.6 An employee who does not meet the definition of a part-time employee and who
is not a full-time employee will be paid as a casual employee in accordance with
clause 13.
[137] Thus the Retail Award allows an employer to pay as a casual employee any employee
who is not a full-time employee and does not fit its definition of a part-time employee. It
follows, we consider, that where an enterprise agreement in the retail sector provides for a
form of employment that does not constitute full-time or part-time employment as
contemplated by the Retail Award, the appropriate point of comparison for the purpose of the
BOOT is the catch-all of casual employment under the award.
[2018] FWCFB 3610
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[138] Such a comparison would need to take into account, from a direct remuneration
perspective, the rates of pay, casual loading, and weekend and public holiday penalties
payable under the Retail Award and the loaded rates of pay, Sunday work allowances, public
holiday penalties and leave entitlements payable under the Aldi Agreements. Attached to this
decision in Schedule B is a preliminary BOOT analysis of the Aldi Prestons Agreement
undertaken by Commission staff under the supervision of Commissioner Lee which takes
these matters into account. It shows that part-time employees under the agreement are better
off overall than under the award on all of the scenarios modelled except where the part-time
employee works only weekend shifts. In accordance with the directions set out at the end of
this decision, Aldi, the SDAEA, the NUW and any other interested party will be invited to
provide further evidence and submissions in response to this analysis going to the following
matters:
(1) whether the analysis is correct;
(2) whether an analysis of the Aldi Stapylton Agreement would produce any
different result;
(3) whether there is any other non-financial element of the Aldi Agreements which
needs to be taken into account in the BOOT analysis, in particular the fact that
a part-time employee under the bankable hours system will receive the same
pay each pay period regardless of whether they worked more or less than their
contracted hours;
(4) any undertaking which may be appropriate to address any identified BOOT
deficiency; and
(5) any other matter considered relevant to the application of the BOOT to part-
time employees under the Aldi Agreements.
[139] In relation to the third issue, we consider that the “make good” provision in clause 14
of the Aldi Agreements does not provide any answer to any concern about passing the BOOT
which may be identified, for the reasons explained in SDAEA v Beechworth Bakery.26 In
short, the provision firstly only operates upon an employee request for a pay comparison, so
that if the employee for whatever reason makes no such request, the provision will have no
work to do and any BOOT deficiency will remain unrectified and, secondly, even where an
employee request is made, the provision does not provide for the employee to be better off
overall, but only requires any “shortfall” in remuneration compared to the award to be paid.
[140] As to the final issue, there are two propositions which are relevant:
(1) The NES will be excluded for the purpose of s 55 of the FW Act if the
provisions of an enterprise agreement would in their operation result in an
outcome whereby employees do not receive, in full or at all, a benefit provided
for by the NES.27
26 [2017] FWCFB 1664 at [39]-[43]
27 Canavan Building Pty Ltd [2014] FWCFB 3202 at [36]
[2018] FWCFB 3610
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(2) Sections 90, 99 and 106 of the FW Act require that when an employee takes a
period of annual leave, personal/carer’s leave or compassionate leave
respectively, the employee must be paid at the employee’s base rate of pay for
the employee’s ordinary hours of work in the period for which the leave is
taken.
[141] Clause 19 of the Aldi Agreements, as earlier set out, provides that employees taking
leave will be paid at a rate of pay not less than that provided under the NES. Considered in
isolation, this provision is entirely consistent with the NES. However the operative
remuneration provisions are set out in Schedules A-C of the agreements and, in respect of
non-salaried hourly rate employees, Schedules A-C provide that leave entitlements are to be
paid, for each day of leave taken, on the basis of the employee’s “Notional Shift Hours”. The
definition of this expression in clause 33 deems this to be a specified number of hours per
shift depending on the employee’s contract hours. This is the case irrespective of the number
of hours the employee would have worked each day over the period of leave. Aldi’s
submissions properly concede that this may result in employees who take leave sometimes
getting paid less hours (as well as sometimes getting paid more) than they would have
received if they had not taken leave. Although the relevant leave payment provisions in the
Schedules allow employees to “top up” their leave payments based on Notional Shift Hours to
the level of paid hours they would have expected to have received if not on leave, it appears
that this top up must come from an additional deduction from the employee’s accrued leave.
[142] The NES requires entitlements to annual, personal/carer’s and compassionate leave to
be paid for in full when it is taken;28 it does not contemplate that there may be some overall
balancing of leave entitlements over time. It follows from this that, notwithstanding clause 19,
the Aldi Agreements in their operation exclude in part ss 90, 99 and 106 of the FW Act.
[143] This difficulty may be addressed by an undertaking in appropriate terms. We propose
to invite further submissions from Aldi, the SDAEA, the NUW and any other interested
parties concerning this.
Conclusion
[144] As earlier stated, the applications for approval of the Allied Agreement, the JWT
Agreement and the PSA Agreement are dismissed.
[145] The following directions are made with respect to the applications for approval of the
Aldi Prestons Agreements and the Aldi Stapylton Agreement:
(1) Aldi shall, within 14 days of the date of this decision, file and serve:
(a) any evidence in reply to the witness statement of Rebecca Patena;
(b) written submissions in reply to the SDAEA’s submissions based on the
BOOT analysis in Ms Patena’s witness statement;
28 Ibid
[2018] FWCFB 3610
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(c) any evidence or written submission in response to the BOOT analysis
in Schedule B to this decision addressing the matters identified in
paragraph [132] above;
(d) any submissions, and any proposed undertaking, addressing the issue of
payment for leave entitlements discussed in paragraphs [140]-[142]
above.
(2) The SDAEA, the NUW and any other interested party shall file and serve any
evidence and written submissions in response to any evidence and material
filed by Aldi pursuant to direction (1) within a further 14 days.
[146] This Bench will be reconstituted to consist of a single member of the Commission in
respect of the further hearing and determination of the applications for approval of the Aldi
Agreements. The parties will be advised of a further date for the hearing of the applications
after the Bench has been so reconstituted.
VICE PRESIDENT
Appearances:
N Arends, solicitor on behalf of JWT Security and Allied Security Management.
G Hatcher SC with A Perigo of counsel for Aldi Food Stores.
W Friend QC on behalf of the Shop, Distributive and Allied Employees Association.
D Mujkic on behalf of the National Union of Workers.
S. Bull on behalf of United Voice.
S Ismail on behalf of the Australian Council of Trade Unions.
A Matheson on behalf of Australian Chamber of Commerce and Industry.
S Smith on behalf of the Australian Industry Group.
N Tindley, solicitor on behalf of the Australian Retailers Association.
A Millman on behalf of the National Retail Association.
Hearing details:
2017.
Sydney:
15 November
Printed by authority of the Commonwealth Government Printer
PR608260
OF THE FAIR WORK MISSION THE
[2018] FWCFB 3610
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SCHEDULE A
Methodology for Roster Scenarios 1 to 18
(1) The loaded rate calculated in each of the roster scenarios 1 – 18 is the appropriate
loaded rate that would be required to compensate employees for not receiving the
following Penalty Rates contained in clause 22.3 of the Security Services Industry
Award 2010 when working on the stipulated roster in each scenario:
Night shift penalties of 21.7% for working between 6pm to 12am and 12am to 6am
Monday-Friday
Permanent night shift penalty of 30% for working permanent nights under the
Award. This means work performed during a night span over the whole period of a
roster cycle in which more than two thirds of the employee’s ordinary shifts include
ordinary hours between 0000 hrs and 0600 hrs
Saturday penalties of 50%
Sunday penalties of 100%
Public holiday penalties of 150%
(2) The loaded rates have been calculated assuming employees in the scenarios are not
entitled to any award allowance including leading hand allowance, relieving officer’s
allowance and first aid allowance.
(3) Employers must pay an employee their annual leave entitlements in accordance with
clause 24.6 of the Security Award. The loaded rate may not adequately compensate
employees for their annual leave entitlement under the Security Award if annual leave
is paid at the loaded rate.
(4) The loaded rate also takes into account the casual loading where applicable.
(5) The loaded rates in the scenarios would only be appropriate for the relevant roster
scenario to pass the BOOT if employees otherwise are entitled under the hypothetical
agreement to other terms or conditions of employment which are the same as or at
least equally beneficial to those in the Security Award, and the agreement does not
contain any other provision not contained in the Security Award which would be
detrimental to employees.
(6) Where the model makes provision for public holidays it is assumed that the public
holidays are worked on a weekday.
(7) The ‘loading’ is the difference between the notional weekly rate under each scenario
plus $10 and the award weekly minimum rate. This loading is converted to a
percentage and rounded up to derive the loaded rate percentage, being the percentage
the rate needs to be above the Security Award rate to ensure the loaded rate will
adequately compensate employees under each roster scenario. The rounded percentage
was then used to calculate the weekly loaded rate which was then verified in the
models below.
[2018] FWCFB 3610
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(8) Scenarios 1 to 18 use the Security Award ordinary rates effective from 1 July 2018.
Both the pay rates and the hours worked have been calculated to two decimal places.
Modelling for Full-time Employees
Scenario 1
A Level 1 permanent employee working a 38 hour week for each week of the year which
comprises of the following:
1/7 of their ordinary hours worked on each day of the week
Mon-Fri hours are evenly split between day shift work and night shift work
Given public holidays are likely to be worked in the security industry this employee
also works 6 public holidays a year for 7.6 hours on each public holiday. The figure
in a weekly model to proportion the public holidays to the weekly model would
approximately be represented by “6 days x 7.6 hours ÷ 52 weeks = 0.88 hours.”
Loaded Rate $28.49
Award Ordinary
Rate $21.26
Hours Loading
weekly
total Hours Loading
weekly
total
Ordinary Time 38 100% $1,082.62 Mon- Fri Day 13.13 100% $279.14
$0.00 Mon-Fri Night 13.13 121.7% $339.72
$0.00 Mon-Fri Perm Night 0 130% $0.00
$0.00 Saturday 5.43 150% $173.16
$0.00 Sunday 5.43 200% $230.88
$0.00 Public Holiday 0.88 250% $46.77
Totals 38.00 Hrs $1,082.62 Totals 38.00 Hrs $1,069.67
The loaded rate for each Security Award classification for a full-time employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 1
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) / award
weekly rate*
Loaded Rate =
award rate +
34%
Level 1 $21.26 808.00 $1,069.67 34% $28.49
Level 2 $21.87 831.20 $1,100.37 34% $29.31
Level 3 $22.24 845.30 $1,118.99 34% $29.80
Level 4 $22.62 859.40 $1,138.10 34% $30.31
Level 5 $23.35 887.20 $1,174.84 34% $31.29
* rounded up to nearest whole number
[2018] FWCFB 3610
76
Scenario 2
A Level 1 permanent employee working a 38 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
Other hours are worked by the employee on day shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 6 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”
Loaded Rate $25.51
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $969.38 Mon- Fri Day 29.52 100% $627.60
$0.00 Mon-Fri Night 0 121.7% $0.00
$0.00
Mon-Fri Perm
Night
0
130% $0.00
$0.00 Saturday 3.8 150% $121.18
$0.00 Sunday 3.8 200% $161.58
$0.00 Public Holiday 0.88 250% $46.77
Totals 38.00 Hrs $969.38 Totals 38.00 Hrs $957.13
The loaded rate for each Security Award classification for a full-time employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 2
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
20%
Level 1 $21.26 808.00 $957.13 20% $25.51
Level 2 $21.87 831.20 $984.58 20% $26.24
Level 3 $22.24 845.30 $1,001.24 20% $26.69
Level 4 $22.62 859.40 $1,018.34 20% $27.14
Level 5 $23.35 887.20 $1,051.22 20% $28.02
* rounded up to nearest whole number
Scenario 3
A Level 1 permanent employee working a 38 hour week for each week of the year which
comprises of the following:
Employee works two 12 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”
Employee works two 12 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”
Other hours are worked by the employee on day shift.
[2018] FWCFB 3610
77
Given public holidays are likely to be worked in the Security Industry this
employee also works 6 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”
Loaded Rate $27.43
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $1,042.34 Mon- Fri Day 25.12 100% $534.05
$0.00 Mon-Fri Night 0 121.7% $0.00
$0.00
Mon-Fri Perm
Night
0
130% $0.00
$0.00 Saturday 6 150% $191.34
$0.00 Sunday 6 200% $255.12
$0.00 Public Holiday 0.88 250% $46.77
Totals 38.00 Hrs $1,042.34 Totals 38.00 Hrs $1,027.28
The loaded rate for each Security Award classification for a full-time employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 3
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
29%
Level 1 $21.26 808.00 $1,027.28 29% $27.43
Level 2 $21.87 831.20 $1,056.75 29% $28.21
Level 3 $22.24 845.30 $1,074.64 29% $28.69
Level 4 $22.62 859.40 $1,092.99 29% $29.18
Level 5 $23.35 887.20 $1,128.27 29% $30.12
* rounded up to nearest whole number
Scenario 4
A Level 1 permanent employee working a 38 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
Other hours are worked by the employee on permanent night shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 6 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
[2018] FWCFB 3610
78
Loaded Rate $30.40
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $1,155.20 Mon- Fri Day 0 100% $0.00
$0.00 Mon-Fri Night 0 121.7% $0.00
$0.00
Mon-Fri Perm
Night
29.52
130% $815.87
$0.00 Saturday 3.8 150% $121.18
$0.00 Sunday 3.8 200% $161.58
$0.00 Public Holiday 0.88 250% $46.77
Totals 38.00 Hrs $1,155.20 Totals 38.00 Hrs $1,145.40
The loaded rate for each Security Award classification for a full-time employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 4
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
43%
Level 1 $21.26 808.00 $1,145.40 43% $30.40
Level 2 $21.87 831.20 $1,178.26 43% $31.27
Level 3 $22.24 845.30 $1,198.20 43% $31.80
Level 4 $22.62 859.40 $1,218.67 43% $32.35
Level 5 $23.35 887.20 $1,258.01 43% $33.39
* rounded up to nearest whole number
Scenario 5
A Level 1 permanent employee working a 38 hour week for each week of the year which
comprises of the following:
Employee works two 12 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 12 hours ÷ 4 weeks =6”
Employee works two 12 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”
Other hours are worked by the employee on permanent night shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 6 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate $31.68
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $1,203.84 Mon- Fri Day 0 100% $0.00
$0.00 Mon-Fri Night 0 121.7% $0.00
[2018] FWCFB 3610
79
$0.00
Mon-Fri Perm
Night
25.12
130% $694.27
$0.00 Saturday 6 150% $191.34
$0.00 Sunday 6 200% $255.12
$0.00 Public Holiday 0.88 250% $46.77
Totals 38.00 Hrs $1,203.84 Totals 38.00 Hrs $1,187.50
The loaded rate for each Security Award classification for a full-time employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 5
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
49%
Level 1 $21.26 808.00 $1,187.50 49% $31.68
Level 2 $21.87 831.20 $1,221.57 49% $32.59
Level 3 $22.24 845.30 $1,242.24 49% $33.14
Level 4 $22.62 859.40 $1,263.46 49% $33.70
Level 5 $23.35 887.20 $1,303.24 49% $34.79
* rounded up to nearest whole number
Modelling for Part-time Employees
Scenario 6
A Level 1 part-time employee working a 30 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Other hours are worked by the employee on day shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 3 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “3 days x 7.6 hours ÷ 52 weeks = 0.44”.
Loaded Rate $26.15
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 30 100% $784.50 Mon- Fri Day 21.96 100% $466.87
$0.00 Mon-Fri Night 0 121.7% $0.00
$0.00
Mon-Fri Perm
Night
0
130% $0.00
$0.00 Saturday 3.8 150% $121.18
$0.00 Sunday 3.8 200% $161.58
$0.00 Public Holiday 0.44 250% $23.39
[2018] FWCFB 3610
80
Totals 30.00 Hrs $784.50 Totals 30.00 Hrs $773.02
The loaded rate for each Security Award classification for a part-time employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
rate for
30 hours
Scenario 6
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
23%
Level 1 $21.26 $637.80 $773.02 23% $26.15
Level 2 $21.87 $656.10 $795.20 23% $26.90
Level 3 $22.24 $667.20 $808.64 23% $27.36
Level 4 $22.62 $678.60 $822.46 23% $27.82
Level 5 $23.35 $700.50 $849.02 23% $28.72
* rounded up to nearest whole number
Scenario 7
A Level 1 permanent employee working a 30 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Other hours are worked by the employee on permanent night shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 3 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “3 days x 7.6 hours ÷ 52 weeks = 0.44.
Loaded Rate $30.83
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 30 100% $924.90 Mon- Fri Day 0 100% $0.00
$0.00 Mon-Fri Night 0 121.7% $0.00
$0.00
Mon-Fri Perm
Night
21.96
130% $606.93
$0.00 Saturday 3.8 150% $121.18
$0.00 Sunday 3.8 200% $161.58
$0.00 Public Holiday 0.44 250% $23.39
Totals 30.00 Hrs $924.90 Totals 30.00 Hrs $913.08
The loaded rate for each Security Award classification for a part-time employee on this roster
pattern is below:
[2018] FWCFB 3610
81
Classification
Award
minimum
hourly
rate
Award
minimum
rate for
30 hours
Scenario 7
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
45%
Level 1 $21.26 $ 637.80 $913.08 45% $30.83
Level 2 $21.87 $ 656.10 $939.27 45% $31.71
Level 3 $22.24 $ 667.20 $955.16 45% $32.25
Level 4 $22.62 $ 678.60 $971.48 45% $32.80
Level 5 $23.35 $ 700.50 $1,002.85 45% $33.86
* rounded up to nearest whole number
Scenario 8
A Level 1 part-time employee working a 15 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Other hours are worked by the employee on day shift.
Given public holidays are likely to be worked in the Security Industry this employee
also works 2 public holidays a year for 7.6 hours on each public holiday. This is
represented in the model as “2 days x 7.6 hours ÷ 52 weeks = 0.29”.
Loaded Rate $30.40
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 15 100% $456.00 Mon- Fri Day 7.11 100% $151.16
$0.00 Mon-Fri Night 0 121.7% $0.00
$0.00
Mon-Fri Perm
Night
0
130% $0.00
$0.00 Saturday 3.8 150% $121.18
$0.00 Sunday 3.8 200% $161.58
$0.00 Public Holiday 0.29 250% $15.41
Totals 15.00 Hrs $456.00 Totals 15.00 Hrs $449.33
The loaded rate for each Security Award classification for a part-time employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
rate for
15 hours
Scenario 8
weekly rate
(Scenario weekly
rate + $5 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
43%
Level 1 $21.26 $ 318.90 $449.33 43% $30.40
Level 2 $21.87 $ 328.05 $462.23 43% $31.27
Level 3 $22.24 $ 333.60 $470.04 43% $31.80
Level 4 $22.62 $ 339.30 $478.07 43% $32.35
Level 5 $23.35 $ 350.25 $493.51 43% $33.39
* rounded up to nearest whole number
[2018] FWCFB 3610
82
Scenario 9
A Level 1 permanent employee working a 15 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
Other hours are worked by the employee on permanent night shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 2 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “2 days x 7.6 hours ÷ 52 weeks = 0.29”.
Loaded Rate $33.38
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 15 100% $500.70 Mon- Fri Day 0 100% $0.00
$0.00 Mon-Fri Night 0 121.7% $0.00
$0.00
Mon-Fri Perm
Night
7.11
130% $196.51
$0.00 Saturday 3.8 150% $121.18
$0.00 Sunday 3.8 200% $161.58
$0.00 Public Holiday 0.29 250% $15.41
Totals 15.00 Hrs $500.70 Totals 15.00 Hrs $494.68
The loaded rate for each Security Award classification for a part-time employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
rate for
15 hours
Scenario 9
weekly rate
(Scenario weekly
rate + $5 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
57%
Level 1 $21.26 $ 318.90 $494.68 57% $33.38
Level 2 $21.87 $ 328.05 $508.87 57% $34.34
Level 3 $22.24 $ 333.60 $517.47 57% $34.92
Level 4 $22.62 $ 339.30 $526.32 57% $35.51
Level 5 $23.35 $ 350.25 $543.31 57% $36.66
* rounded up to nearest whole number
Modelling for Casual Employees
Scenario 10
A Level 1 casual employee working a 38 hour week for each week of the year which
comprises of the following:
1/7 of their ordinary hours worked on each day of the week
[2018] FWCFB 3610
83
Mon-Fri hours are evenly split between day shift work and night shift work
Given public holidays are likely to be worked in the Security Industry this
employee also works 6 public holidays a year for 7.6 hours on each public holiday.
The figure in a weekly model to proportion the public holidays to the weekly
model would approximately be represented by “6 days x 7.6 hours ÷ 52 weeks =
0.88 hours.”
Loaded Rate $33.80
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $1,284.40 Mon- Fri Day 13.13 125% $348.93
$0.00 Mon-Fri Night 13.13 146.7% $409.50
$0.00
Mon-Fri Perm
Night 0
155%
$0.00
$0.00 Saturday 5.43 175% $202.02
$0.00 Sunday 5.43 225% $259.74
$0.00 Public Holiday 0.88 275% $51.45
Totals 38.00 Hrs $1,284.40 Totals 38.00 Hrs $1,271.64
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 10
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) / award
weekly rate*
Loaded Rate =
award rate +
59%
Level 1 $21.26 808.00 $1,271.64 59% $33.80
Level 2 $21.87 831.20 $1308.14 59% $34.77
Level 3 $22.24 845.30 $1,330.27 59% $35.36
Level 4 $22.62 859.40 $1,353.00 59% $35.97
Level 5 $23.35 887.20 $1,396.66 59% $37.13
* rounded up to nearest whole number
Scenario 11
A Level 1 casual employee working a 38 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Other hours are worked by the employee on day shift.
Given public holidays are likely to be worked in the Security Industry this employee
also works 6 public holidays a year for 7.6 hours on each public holiday. This is
represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
[2018] FWCFB 3610
84
Loaded Rate $30.83
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $1,171.54 Mon- Fri Day 29.52 125% $784.49
$0.00 Mon-Fri Night 0 146.7% $0.00
$0.00
Mon-Fri Perm
Night
0 155%
$0.00
$0.00 Saturday 3.8 175% $141.38
$0.00 Sunday 3.8 225% $181.77
$0.00 Public Holiday 0.88 275% $51.45
Totals 38.00 Hrs $1,171.54 Totals 38.00 Hrs $1,159.09
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 11
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
45%
Level 1 $21.26 808.00 $1,159.09 45% $30.83
Level 2 $21.87 831.20 $1,192.36 45% $31.71
Level 3 $22.24 845.30 $1,212.53 45% $32.25
Level 4 $22.62 859.40 $1,233.24 45% $32.80
Level 5 $23.35 887.20 $1,273.05 45% $33.86
* rounded up to nearest whole number
Scenario 12
A Level 1 casual employee working a 38 hour week for each week of the year which
comprises of the following:
Employee works two 12 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”.
Employee works two 12 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”.
Other hours are worked by the employee on day shift.
Given public holidays are likely to be worked in the Security Industry this employee
also works 6 public holidays a year for 7.6 hours on each public holiday. This is
represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate $32.74
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $1,244.12 Mon- Fri Day 25.12 125% $667.56
$0.00 Mon-Fri Night 0 146.7% $0.00
$0.00
Mon-Fri Perm
Night
0 155%
$0.00
$0.00 Saturday 6 175% $223.23
$0.00 Sunday 6 225% $287.01
[2018] FWCFB 3610
85
$0.00 Public Holiday 0.88 275% $51.45
Totals 38.00 Hrs $1,244.12 Totals 38.00 Hrs $1,229.25
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 12
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
54%
Level 1 $21.26 808.00 $1,229.25 54% $32.74
Level 2 $21.87 831.20 $1,264.54 54% $33.68
Level 3 $22.24 845.30 $1,285.92 54% $34.25
Level 4 $22.62 859.40 $1,307.89 54% $34.83
Level 5 $23.35 887.20 $1,350.11 54% $35.96
* rounded up to nearest whole number
Scenario 13
A Level 1 casual employee working a 38 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Other hours are worked by the employee on permanent night shift.
Given public holidays are likely to be worked in the Security Industry this employee
also works 6 public holidays a year for 7.6 hours on each public holiday. This is
represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate $35.72
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $1,357.36 Mon- Fri Day 0 125% $0.00
$0.00 Mon-Fri Night 0 146.7% $0.00
$0.00
Mon-Fri Perm
Night
29.52 155%
$972.77
$0.00 Saturday 3.8 175% $141.38
$0.00 Sunday 3.8 225% $181.77
$0.00 Public Holiday 0.88 275% $51.45
Totals 38.00 Hrs $1,357.36 Totals 38.00 Hrs $1,347.37
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
[2018] FWCFB 3610
86
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 13
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) / award
weekly rate*
Loaded Rate =
award rate +
68%
Level 1 $21.26 808.00 $1,347.37 68% $35.72
Level 2 $21.87 831.20 $1386.04 68% $36.74
Level 3 $22.24 845.30 $1,409.48 68% $37.36
Level 4 $22.62 859.40 $1,433.56 68% $38.00
Level 5 $23.35 887.20 $1479.83 68% $39.23
* rounded up to nearest whole number
Scenario 14
A Level 1 casual employee working a 38 hour week for each week of the year which
comprises of the following:
Employee works two 12 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”.
Employee works two 12 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 12 hours ÷ 4 weeks = 6”.
Other hours are worked by the employee on permanent night shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 6 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate $36.99
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 38 100% $1,405.62 Mon- Fri Day 0 125% $0.00
$0.00 Mon-Fri Night 0 146.7% $0.00
$0.00
Mon-Fri Perm
Night
25.12 155%
$827.78
$0.00 Saturday 6 175% $223.23
$0.00 Sunday 6 225% $287.01
$0.00 Public Holiday 0.88 275% $51.45
Totals 38.00 Hrs $1,405.62 Totals 38.00 Hrs $1,389.47
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 14
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
74%
Level 1 $21.26 808.00 $1,389.47 74% $36.99
Level 2 $21.87 831.20 $1429.35 74% $38.05
Level 3 $22.24 845.30 $1,453.52 74% $38.70
[2018] FWCFB 3610
87
Level 4 $22.62 859.40 $1,478.35 74% $39.36
Level 5 $23.35 887.20 $1,526.08 74% $40.63
* rounded up to nearest whole number
Scenario 15
A Level 1 casual employee working a 30 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”
Other hours are worked by the employee on day shift.
Given public holidays are likely to be worked in the Security Industry this employee
also works 6 public holidays a year for 7.6 hours on each public holiday. This is
represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate $31.89
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 30 100% $956.70 Mon- Fri Day 21.52 125% $571.89
$0.00 Mon-Fri Night 0 146.7% $0.00
$0.00
Mon-Fri Perm
Night
0 155%
$0.00
$0.00 Saturday 3.8 175% $141.38
$0.00 Sunday 3.8 225% $181.77
$0.00 Public Holiday 0.88 275% $51.45
Totals 30.00 Hrs $956.70 Totals 30.00 Hrs $946.49
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 15
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
50%
Level 1 $21.26 $ 637.80 $946.49 50% $31.89
Level 2 $21.87 $ 656.10 $973.66 50% $32.81
Level 3 $22.24 $ 667.20 $990.13 50% $33.36
Level 4 $22.62 $ 678.60 $1,007.04 50% $33.93
Level 5 $23.35 $ 700.50 $1,039.55 50% $35.03
* rounded up to nearest whole number
[2018] FWCFB 3610
88
Scenario 16
A casual employee working a 30 hour week for each week of the year which comprises of the
following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Other hours are worked by the employee on permanent night shift.
Given public holidays are likely to be worked in the Security Industry this employee
also works 6 public holidays a year for 7.6 hours on each public holiday. This is
represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate $36.57
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 30 100% $1,097.10 Mon- Fri Day 0 125% $0.00
$0.00 Mon-Fri Night 0 146.7% $0.00
$0.00
Mon-Fri Perm
Night
21.52 155%
$709.15
$0.00 Saturday 3.8 175% $141.38
$0.00 Sunday 3.8 225% $181.77
$0.00 Public Holiday 0.88 275% $51.45
Totals 30.00 Hrs $1,097.10 Totals 30.00 Hrs $1,083.75
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 16
weekly rate
(Scenario weekly
rate + $10 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
72%
Level 1 $21.26 $ 637.80 $1,083.75 72% $36.57
Level 2 $21.87 $ 656.10 $1,114.86 72% $37.62
Level 3 $22.24 $ 667.20 $1,133.71 72% $38.25
Level 4 $22.62 $ 678.60 $1,153.07 72% $38.91
Level 5 $23.35 $ 700.50 $1,190.29 72% $40.16
* rounded up to nearest whole number
[2018] FWCFB 3610
89
Scenario 17
A Level 1 casual employee working a 15 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Other hours are worked by the employee on day shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 6 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate $36.99
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 15 100% $554.85 Mon- Fri Day 6.52 125% $173.27
$0.00 Mon-Fri Night 0 146.7% $0.00
$0.00
Mon-Fri Perm
Night
0 155%
$0.00
$0.00 Saturday 3.8 175% $141.38
$0.00 Sunday 3.8 225% $181.77
$0.00 Public Holiday 0.88 275% $51.45
Totals 15.00 Hrs $554.85 Totals 15.00 Hrs $547.87
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 17
weekly rate
(Scenario weekly
rate + $5 – award
weekly rate) /
award weekly rate*
Loaded Rate =
award rate +
74%
Level 1 $21.26 $ 318.90 $547.87 74% $36.99
Level 2 $21.87 $ 328.05 $536.60 74% $38.05
Level 3 $22.24 $ 333.60 $573.13 74% $38.70
Level 4 $22.62 $ 339.30 $582.91 74% $39.36
Level 5 $23.35 $ 350.25 $601.73 74% $40.63
* rounded up to nearest whole number
[2018] FWCFB 3610
90
Scenario 18
A Level 1 casual employee working a 15 hour week for each week of the year which
comprises of the following:
Employee works two 7.6 hour shifts on a Saturday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Employee works two 7.6 hour shifts on a Sunday in a 4 week period. This is
represented in the weekly model as “2 days x 7.6 hours ÷ 4 weeks = 3.8”.
Other hours are worked by the employee on permanent night shift.
Given public holidays are likely to be worked in the Security Industry this
employee also works 6 public holidays a year for 7.6 hours on each public holiday.
This is represented in the model as “6 days x 7.6 hours ÷ 52 weeks = 0.88”.
Loaded Rate $39.76
Award
Ordinary Rate $21.26
Hours Loading weekly total Hours Loading
weekly
total
Ordinary Time 15 100% $596.40 Mon- Fri Day 0 125% $0.00
$0.00 Mon-Fri Night 0 146.7% $0.00
$0.00
Mon-Fri Perm
Night
6.52 155%
$214.85
$0.00 Saturday 3.8 175% $141.38
$0.00 Sunday 3.8 225% $181.77
$0.00 Public Holiday 0.88 275% $51.45
Totals 15.00 Hrs $596.40 Totals 15.00 Hrs $589.45
The loaded rate for each Security Award classification for a casual employee on this roster
pattern is below:
Classification
Award
minimum
hourly
rate
Award
minimum
weekly
rate
Scenario 18
weekly rate
(Scenario weekly rate
+ $5 – award weekly
rate) / award weekly
rate*
Loaded Rate =
award rate +
87%
Level 1 $21.26 $ 318.90 $589.45 87% $39.76
Level 2 $21.87 $ 328.05 $606.38 87% $40.90
Level 3 $22.24 $ 333.60 $616.63 87% $41.59
Level 4 $22.62 $ 339.30 $627.16 87% $42.30
Level 5 $23.35 $ 350.25 $647.41 87% $43.66
* rounded up to nearest whole number
[2018] FWCFB 3610
91
SCHEDULE B
ALDI Prestons Agreement – BOOT Analysis for part-time employees under the unique
“bankable hours arrangements” under the ALDI agreements based on comparison with
casual employment under the Retail Award
Classification Description
The “Store Assistant working any 5 out of 7 days non-CBD Stores” classification may work
within the following span of hours:
- 6.00am – 11.00pm Monday – Friday
- 6.00am – 8.00pm Saturday
- 6.00am – 8.00pm Sunday
Employees working these hours receive the following penalties and allowances:
- 200% loading on Public Holidays
- $12.00 per hour allowance for work performed on Sundays
Part-time v Casual Employment
As per ALDI’s submissions the Agreement rate for “Store Assistant working any 5 out of 7
days non-CBD Stores” has been compared against Level 1 of the General Retail Industry
Award 2010 with casual loadings and penalties applied and no annual leave or leave loading.
As the Agreement was lodged on 29 May 2017 the pre-1 July 2017 Award rates and penalties
have been used for the purpose of the below comparisons.
All scenarios modelled below appear to indicate a part-time employee under the Agreement is
better off overall when compared to a casual employee under the Award. All models indicate
an employee working a full 38 hour week.
Modelling
(1) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD
Stores” employee working ordinary hours Monday – Friday between 7am and 9pm is better
off under the Agreement than the Award.
Agreement
Ordinary
Rate $24.30
Award
Ordinary Rate $19.44
Hours Loading
weekly
total Hours Loading
weekly
total
Ordinary
Hours
38 100%
$923.40
Ordinary Hours 38 125%
$923.40
Annual Leave Yes $71.03 Annual Leave No $0.00
Leave Loading Yes $11.21 Leave Loading No $0.00
Totals 38.00 Hrs $1,005.64 Totals 38.00 Hrs $923.40
[2018] FWCFB 3610
92
Agreement Total Weekly Rate $1,005.64
Award Total Weekly Rate $923.40
Dollar /
Actual Percentage Difference
$82.24
8.91%
(2) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD
Stores” employee working 7.6 hours on four week days between 7am and 9pm and 7.6 hours
on a Saturday between 7am and 6pm is better off under the Agreement than the Award.
Agreement
Ordinary
Rate $24.30
Award
Ordinary Rate $19.44
Hours Loading
weekly
total Hours Loading
weekly
total
Ordinary
Hours
30.4 100%
$738.72
Ordinary Hours 30.4 125%
$738.72
Saturday 7.6 100% $184.68 Saturday 7.6 135% $199.45
Annual Leave Yes $71.03 Annual Leave No $0.00
Leave Loading Yes $11.21 Leave Loading No $0.00
Totals 38.00 Hrs $1,005.64 Totals 38.00 Hrs $938.17
Agreement Total Weekly Rate $1,005.64
Award Total Weekly Rate $938.17
Dollar /
Actual Percentage Difference
$67.47
7.19%
(3) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD
Stores” employee working 7.6 hours on four week days between 7am and 9pm and 7.6 hours
on a Sunday between 9am and 6pm is better off under the Agreement than the Award.
Agreement
Ordinary Rate $24.30
Award
Ordinary Rate $19.44
Hours Loading
weekly
total Hours Loading
weekly
total
Ordinary Hours 30.4 100%
$738.72
Ordinary Hours 30.4 125%
$738.72
Sunday 7.6 100% $184.68 Sunday 7.6 200% $295.49
Allowances Amount Value Allowances Amount Value
Sunday 7.6 $12.00 $91.20 Allowance $0.00
Annual Leave Yes $71.03 Annual Leave No $0.00
Leave Loading Yes $11.21 Leave Loading No $0.00
Totals 38.00 Hrs $1,096.84 Totals 38.00 Hrs $1,034.21
[2018] FWCFB 3610
93
Agreement Total Weekly Rate $1,096.84
Award Total Weekly Rate $1,034.21
Dollar /
Actual Percentage Difference
$62.63
6.06%
(4) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD
Stores” employee working 7.6 hours on three week days between 7am and 9pm as well as 7.6
hours on a Sunday between 9am and 6pm and 7.6 hours on a Saturday between 7am and 6pm
is better off under the Agreement than the Award.
Agreement
Ordinary
Rate $24.30
Award
Ordinary
Rate $19.44
Hours Loading
weekly
total Hours Loading
weekly
total
Ordinary
Hours
22.8 100%
$554.04
Ordinary
Hours
22.8 125%
$554.04
Saturday 7.6 100% $184.68 Saturday 7.6 135% $199.45
Sunday 7.6 100% $184.68 Sunday 7.6 200% $295.49
Allowances Amount Value Allowances Amount Value
Sunday 7.6 $12.00 $91.20 Allowance $0.00
Annual Leave Yes $71.03 Annual Leave No $0.00
Leave Loading Yes $11.21 Leave Loading No $0.00
Totals 38.00 Hrs $1,096.84 Totals 38.00 Hrs $1,048.98
Agreement Total Weekly Rate $1,096.84
Award Total Weekly Rate $1,048.98
Dollar / Actual Percentage
Difference
$47.86
4.56%
(5) The model below indicates that a “Store Assistant working any 5 out of 7 days non-CBD
Stores” employee working three week days, Sunday, Saturday and all Public Holidays is
better off under the Agreement than the Award. This model below is based on the following
assumptions:
13 public holidays are worked during the year on a weekday. This is represented in
the model as 1.9 which averages the public holidays worked over a year to a
weekly model. The 1.9 is calculated by “7.6 hours x 13 days ÷ 52 weeks”
Employees work 7.6 hours on a Sunday between 9am and 6pm every week
Employees work 7.6 hours on a Saturday between 7am and 6pm every week
Employees work 7.6 hours on 3 weekdays each week between 7am and 9pm every
week.
[2018] FWCFB 3610
94
Agreement
Ordinary
Rate $24.30
Award
Ordinary
Rate $19.44
Hours Loading
weekly
total Hours Loading
weekly
total
Ordinary
Hours
20.9 100%
$507.87
Ordinary
Hours
20.9 125%
$507.87
Saturday 7.6 100% $184.68 Saturday 7.6 135% $199.45
Sunday 7.6 100% $184.68 Sunday 7.6 200% $295.49
Public
Holidays 1.9 200% $92.34
Public
Holidays 1.9 250% $92.34
Allowances Amount Value Allowances Amount Value
Sunday 7.6 $12.00 $91.20 Allowance $0.00
Annual Leave Yes $71.03 Annual Leave No $0.00
Leave Loading Yes $11.21 Leave Loading No $0.00
Totals 38.00 Hrs $1,143.01 Totals 38.00 Hrs $1,095.15
Agreement Total Weekly Rate $1,143.01
Award Total Weekly Rate $1,095.15
Dollar /
Actual Percentage Difference
$47.86
4.37%
Further Issues
Under clause 29.1(a) of the Award at test time a casual employee is not entitled to overtime
payments and under clause 30.1(a) a “Store Assistant working any 5 out of 7 days non-CBD
Stores” would likely not be entitled to shift penalties as they are not specifically employed as
a shift worker. Therefore it does not appear that casual employees would be entitled to any
penalties for hours worked prior to 7.00am on any day and past 6.00pm on a Saturday. Due to
these parameters it may not possible to adequately match all part-time roster patterns against a
casual employee covered by the Award.
Modelling below indicates that an employee only working weekend shifts would be worse off
when compared to a casual employee under the Award. Employees under this model work
Saturdays between 7am to 6pm and Sundays between 9am to 6pm.
[2018] FWCFB 3610
95
Agreement
Ordinary
Rate $24.30
Award
Ordinary
Rate $19.44
Hours Loading
weekly
total Hours Loading
weekly
total
Saturday 7.6 100% $184.68 Saturday 7.6 135% $199.45
Sunday 7.6 100% $184.68 Sunday 7.6 200% $295.49
Allowances Amount Value Allowances Amount Value
Sunday 7.6 $12.00 $91.20 Allowance $0.00
Annual Leave Yes $28.41 Annual Leave No $0.00
Leave Loading Yes $4.48 Leave Loading No $0.00
Totals 15.20 Hrs $493.45 Totals 15.20 Hrs $494.94
Agreement Total Weekly Rate $493.45
Award Total Weekly Rate $494.94
Dollar /
Actual Percentage Difference
-$1.49
0.30%
