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Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Australian Broadcasting Corporation
(AG2023/1284)
ABC ENTERPRISE AGREEMENT 2022-2025
Broadcasting and recorded entertainment industry
COMMISSIONER MATHESON SYDNEY, 17 AUGUST 2023
Application for approval of the ABC Enterprise Agreement 2022-2025
[1] An application has been made for approval of an enterprise agreement known as the
ABC Enterprise Agreement 2022 –2025 (Agreement). The application was made by the
Australian Broadcasting Corporation (Applicant) pursuant to s.185 of the Fair Work Act 2009
(Cth) (Act). The Agreement is a single enterprise agreement.
[2] Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement.
The notification time for the Agreement was a date prior to 6 June 2023. In these circumstances,
and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act
2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite
the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the
Act continues to apply as if the amendments had not been made. The application has been
assessed on this basis, taking into account the provisions of Part 2-4 of the Act in relation to
genuine agreement in force immediately prior to 6 June 2023.
[3] Further, the Agreement was made prior to 6 June 2023. The effect of clause 67 of Part
13 of Schedule 1 of the Act is that the amendments made by Part 16 of Schedule 1 to the
Amending Act in relation to the better off overall test do not apply to the agreement.
[4] There were two union bargaining representatives for the Agreement, being the Media,
Entertainment and Arts Alliance (MEAA) and the Community and Public Sector Union
(CPSU). There were three other employee bargaining representatives. The MEAA filed a ‘Form
F18 – Declaration of employee organisation in relation to an application for approval of an
enterprise agreement (other than a greenfields agreement)’ in which it indicated it supported
the approval of the Agreement and did not wish to advise the Commission that it disagreed with
any statement in the employer’s declaration relating to the Agreement. The CPSU also filed a
Form F18 (Form F18) indicating that while supportive of the Agreement’s approval, it had
concerns that the Agreement may result in employees not being better off overall when
compared to the Australian Broadcasting Corporation Enterprise Award 2016 (Award).
[2023] FWCA 2591
DECISION
AUSTRALIA FairWork Commission
[2023] FWCA 2591
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[5] It is not in dispute that the Award is the relevant award for the purpose of the application
of the better off overall test as set out in s.193 of the Act (BOOT). The Commission also raised
concerns in relation to the BOOT.
[6] Apart from the BOOT concerns raised by the CPSU and the residual BOOT concerns
of the Commission which are dealt with below, I am satisfied, on the basis of the material before
the Commission, that the approval requirements in ss.186 and 187 as relevant to the application
are met.
The concern regarding ‘Rate B’ arrangements
[7] Question 10 of the Form F17 asks ‘Does the agreement contain any terms or conditions
of employment that are more beneficial than equivalent terms and conditions in the modern
award(s) listed in your answer to question 8?’. The answer provided in the Form 17 is ‘yes’ as
indicated in Annexures A and B to the Form F17. Annexure B to the Form F17 is a document
entitled ‘BOOT analysis – ABC Enterprise Agreement 2022 – 2025’.
[8] At Annexure B to the Form F17, the Applicant indicates that clause 21.5 of the
Agreement dealing with ‘excluded employees’ is, compared to clause 21.2(c) of the Award and
for the purposes of the BOOT:
• ‘More beneficial for employees earning between $134,526 and $197,348 as automatic
exemption only applies when earning the higher salary.’
• ‘More beneficial for those who are “Rate B” employees because such employees receive
at least 25% more than the annual minimum salary for the employee’s pay point under
Schedule A or B of the EA. The 25% difference between the employee’s rate of pay and
their base salary as stated in the contract of employment means that the employee is
better off than under the Award because:
o the minimum annual salary under the EA is higher than the minimum salary due
to an employee under the Award…;
o the employee will receive at least 25% more than the annual salary otherwise
due to them under the EA;
o the difference between the Rate Salary and the salary due under the Award more
than compensates for additional payments in respect of the performance of work
that the employee would be entitled to receive under the Award but would not
under the EA (including penalties, overtime, meal allowance, additional annual
leave for Sundays worked, annual leave loading, days off in lieu of public
holidays and transitional meal allowance)’.
[9] In its Form F18, the CPSU advised the Commission that while it was supportive of the
approval of the Agreement by the Commission, it did not agree that employees deemed Rate B
under the Agreement would be better off when compared with the Award.
[10] The Commission also raised a concern about the absence of a mechanism for review or
reconciliation in relation to those on a Rate B arrangement and sought submissions or
undertakings addressing the concern about whether these employees would be better off overall
compared to the Award.
Undertakings
[2023] FWCA 2591
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[11] The Applicant, who is also the employer covered by the Agreement, has provided
written undertakings to address the concerns in relation to Rate B arrangements. A copy of the
undertakings is attached at Annexure A of this decision (Undertakings). The views of each
person I know is a bargaining representative for the Agreement were sought in relation to the
Undertakings and no objections were raised. I am satisfied that the effect of accepting the
Undertakings is not likely to:
(a) cause financial detriment to any employee covered by the Agreement; or
(b) result in substantial changes to the Agreement.
[12] Pursuant to s.190(3) of the Act, I accept the Undertakings.
[13] Subject to the Undertakings, and on the basis of the materials before the Commission, I
am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant
to the application for approval of the Agreement have been met.
[14] As bargaining representatives for the Agreement, the MEAA and CPSU have given
notice under s.183 of the Act that they want the Agreement to cover them. In accordance with
s.201(2) of the Act, I note that the Agreement covers the organisations.
[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from
24 August 2023. The nominal expiry date of the Agreement is 1 October 2025.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
AE521150 PR765269
E FAIR WORK COMME NOIS THE SEAL
https://www.fwc.gov.au/documents/agreements/approved/AE521150.pdf
[2023] FWCA 2591
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Annexure A
THE FAIR WORK COMMISSION Matter No: AG 2023/1284 Applicant: Australian Broadcasting Corporation Proposed Agreement: ABC Enterprise Agreement 2022-2025 Section 185 - Application for approval of a single enterprise agreement Undertaking - Section 190 I, Vanessa MacBean, Head, ER, People Strategy & Governance have the authority given to me by the Australian Broadcasting Corporation (ABC) to give the following undertaking with respect to the ABC Enterprise Agreement 2022 - 2025 (Agreement): The ABC undertakes that: a. the ABC will, as soon as practicable after the end of each relevant period, calculate, for each employee to whom an arrangement under clauses 21.5.2 or 21.5.3 of the Agreement (Rate B Arrangement) applies, the difference, for that part of the relevant period during which the Rate B Arrangement applied, between: i. the salary paid to that employee under the Rate B Arrangement (Rate B Salary); and ii. the amounts that the employee would have received under the Agreement had a Rate B Arrangement not applied to the employee (Agreement Payment); b. if the result of the calculation in paragraph (a) above is that an employee's Rate B Salary for that part of the relevant period was less than the employee's Agreement Payment, then the ABC will (as soon as practicable after the calculation in paragraph (a) is completed) calculate for each such employee the difference, for that part of the relevant period during which the Rate B Arrangement applied, between: i. the Rate B Salary; and ii. the amounts that the employee would have received under the ABC Enterprise Award 2016 (Award) if the Award had applied to the employee's employment during that period (Award Payment); c. if the result of the calculation in paragraph (b) above is that an employee's Rate B Salary for that part of the relevant period was less than the employee's Award Payment, the ABC will, within twenty eight (28) days of the date on which the calculation in paragraph (b) is completed, make a payment to the employee equal to the difference calculated in paragraph (b), less taxation and any other amounts authorised or required to be deducted; d. for the purposes of the above, the "relevant period" will be: each twelve (12) month period starting on the day on which the Agreement commences operating; and ii. if an employee's employment has ended, the period between the last day in the previous relevant period and the date on which the employee's employment ends (to avoid doubt, if there is no previous relevant period for an employee, the relevant period for the purpose of this paragraph (ii) will commence when the Rate B Arrangement first started applying to the employee). This undertaking is provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission. Vanessa MacBean 16/08/2023 Signature Date
