1
Fair Work Act 2009
s.185—Enterprise agreement
BOC Limited
(AG2019/1877)
BOC LIMITED (GAS & GEAR - VICTORIA) CERTIFIED
AGREEMENT 2019
Retail industry
DEPUTY PRESIDENT COLMAN MELBOURNE, 12 AUGUST 2019
Application for approval of an enterprise agreement – NUW objection concerning BOOT –
Agreement’s hourly wages higher but no RDOs – significance of ‘intangible’ benefits –
whether terms offend the NES – agreement approved
[1] BOC Limited has made an application pursuant to s 185 of the Fair Work Act 2009
(the Act) for approval of an enterprise agreement known as the BOC Limited (Gas & Gear -
Victoria) Certified Agreement 2019 (the Agreement). The agreement is a single enterprise
agreement.
[2] The company has provided written undertakings in response to a concern I raised
about the application of penalty rates for casual employees working weekends and public
holidays, and how this affects the question of whether the Agreement passes the ‘better off
overall test’ measured against the General Retail Industry Award 2010 (Award). The
undertakings address my concern. A copy of the undertakings is attached in Annexure A. I am
satisfied that the undertakings will not cause financial detriment to any employee covered by
the Agreement and that they will not result in substantial changes to the Agreement.
[3] The National Union of Workers (NUW) filed an F18 statutory declaration stating that
it supported the approval of the Agreement. However, it subsequently advised the
Commission that it considered that the Agreement does not pass the better off overall test in
relation to prospective employees, on the basis that it does not allow them to accrue rostered
days off (RDOs), unlike the Award.
Better off overall test
[4] The Agreement provides that employees employed prior to its commencement of
operation will accrue 12 RDOs a year, or receive a higher rate of pay that ‘sells’ the RDOs
(see Appendix A, tables 1 and 2). This mirrors the arrangements that apply to all employees
under the current enterprise agreement. However, the Agreement provides that employees
[2019] FWCA 5544
DECISION
E AUSTRALIA FairWork Commission
[2019] FWCA 5544
2
who become employed after the Agreement commences operation will not accrue RDOs or
receive a higher rate of pay for ‘selling’ them (see Appendix A, table 3).
[5] In correspondence with the Commission the NUW initially stated that it was
concerned that the rates of pay afforded to prospective employees under the Agreement were
not high enough to result in them being better off overall as against the Award, because the
Agreement rates were based on employees working 43 hours per week, and under the Award
five of those hours would be paid at overtime rates. However the Commission’s calculations,
which were provided to the company and the NUW, showed that the Agreement’s higher base
rates of pay mean that prospective employees will in fact be better off financially under the
Agreement than under the Award.
[6] The NUW then raised a further BOOT concern in relation to RDOs and prospective
employees. It said that regardless of monetary considerations, prospective employees would
not be better off overall under the Agreement, because of the fact that they would not enjoy
the benefit of accruing and taking RDOs that would otherwise be available under the Award.
The union sought to be heard on this issue. As a bargaining representative for the Agreement,
the NUW has a right to be heard and I listed the matter for this purpose on 9 August 2019.
[7] At the hearing, the NUW acknowledged that current and prospective employees will
be better off overall under the Agreement in monetary terms. However it submitted that the
absence of RDOs for new employees under the Agreement was an ‘intangible’ or ‘lifestyle’
benefit that weighs in the analysis of the better off overall test, and that this is a matter of
sufficient gravity to outweigh the Agreement’s higher rates of pay. The union raised a similar
contention, in respect of both current and prospective employees, in relation to the
Agreement’s failure to replicate the Award provision that allows employees the option to take
time off in lieu of receiving overtime payments.
[8] Working longer days to accrue RDOs and taking time off in lieu of overtime are not
inherently more beneficial arrangements than working ordinary days without RDOs and
receiving payment for overtime. Some employees may view such arrangements as benefits
referable to lifestyle, and the loss of these possibilities vis-à-vis the Award to be detriments.
Other employees may be indifferent to the availability of these options or disfavour them. The
difficulty with such matters is that they are susceptible of different points of view. The better
off overall test must be undertaken on an objective basis. If the personal preferences of each
employee covered by an agreement had to be taken into account the ‘better off overall test’
would become mired in speculation on subjective and unquantifiable matters.
[9] The assessment of the better off overall test will logically focus attention on matters
that are objectively verifiable as relative benefits or detriments, including in particular the
number of hours that employees can be required to work and the payments employees receive
for doing so. I would also emphasise that the analysis of the better off overall test inquires
whether employees would be better off overall under the Agreement than under the relevant
award, not better off on a line by line or itemised basis. Trading off award conditions, such as
those relating to accrual of RDOs and time off in lieu, is plainly permissible under the Act.
[10] In the present matter, prospective employees will receive higher rates of pay for
working 43 hours per week under the Agreement than they would receive for working those
same hours under the Award. In addition, all employees receive 13% superannuation.
Objectively, I consider that prospective employees will clearly be better off overall under the
[2019] FWCA 5544
3
Agreement than they would be under the Award, as will be all current employees. Even if it is
accepted that the Agreement’s curtailment of accrued RDOs and removal of time off in lieu of
overtime are detriments, I consider that these are outweighed by the higher payments
provided for under the Agreement.
[11] I am satisfied that the Agreement passes the better off overall test (s 186(2)(d)).
Exclusion of the NES
[12] Another objection was raised by the NUW at the hearing. It said that the Agreement’s
requirement that prospective employees work 43 hours a week is incompatible with s 62 of
the Act, which is part of the National Employment Standards (NES). Section 62 states that an
employer must not request or require a full-time employee to work more than 38 hours a week
unless the additional hours are reasonable, taking into account the matters in s 62(3).
[13] Section 186(2)(c) states that the Commission must be satisfied, before approving an
agreement, that its terms do not contravene s 55 of the Act, which provides that an enterprise
agreement must not exclude a provision of the NES (s 55(1)).
[14] Clause 6 of the Agreement specifically incorporates the NES, and therefore also s 62,
and states that if there is any inconsistency between the NES and the terms of the Agreement,
the terms more beneficial to the employee apply. If a prospective employee covered by the
Agreement considers that any of the five additional hours is unreasonable, she or he will be
able to invoke the reasonableness criteria in s 62(3). I am satisfied, as required by s 186(2)(c),
that the terms of the Agreement do not contravene s 55.
[15] It is odd that the Act should require the Commission to be satisfied that the terms of an
enterprise agreement do not exclude the NES, given that s 56 provides that any such terms
have no effect anyway. The Commission is compelled to scrutinise agreements for offending
provisions and seek undertakings to cure them. But the process achieves little of substance
because the NES-offending provisions cannot have effect.
[16] If the purpose of s 186(2)(c) is to ensure that employees are not misled by agreement
provisions purporting to exclude the NES, it would be better for the Act to require enterprise
agreements to contain a standard term affirming that the NES cannot be excluded by a term of
the agreement. In this respect and others the approval requirements for enterprise agreements
could usefully and fairly be simplified.
Conclusion
[17] Subject to the undertakings referred to above, and on the basis of the material
contained in the application and accompanying statutory declaration, and taking into account
the submissions of the company and the NUW, I am satisfied that each of the requirements of
ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.
[18] The National Union of Workers, being a bargaining representative for the Agreement,
has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance
with s 201(2) and based on the statutory declaration provided by the organisation, I note that
the Agreement covers the organisation.
[2019] FWCA 5544
4
[19] The Agreement was approved on 12 August 2019 and, in accordance with s 54, will
operate from 19 August 2019. The nominal expiry date of the Agreement is 30 April 2022.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
AE504812 PR711172
THE SEAL OF THE F NOISSI
[2019] FWCA 5544
5
Annexure A
BOC A Member of The Linde Group BOC Limited ACN 000 029 729 15 July 2019 Deputy President Colman Fair Work Commission 11 Exhibition Street MELBOURNE VIC 3000 Dear Deputy President AG2019/1877 - Application for approval of the BOC Limited (Gas & Gear - Victoria) Certified Agreement 2019 I refer to the correspondence received from the Commission dated 9 July 2019 in relation to the above-mentioned Agreement. BOC Limited undertakes that casual employees who perform duties on Saturdays, Sundays and public holidays will receive the applicable penalty rates in the General Retoil Aword 2010. These undertakings are signed by the employer in accordance with Regulation 2.07 of the Fair Work Regulations 2009. Yours sincerely Zamora . Bernardita Zamora HR Business Partner BOC Limited
