[2020] FWCA 251

The attached document replaces the document previously issued with the above code on 30 January 2020.

The second sentence of paragraph [4] has been amended.

Associate to Commissioner Wilson

Dated 31 January 2020

Fair Work Act 2009
s.185—Enterprise agreement

Aerocare Flight Support Pty Ltd T/A Aerocare
(AG2018/2008)

AEROCARE COLLECTIVE AGREEMENT 2018

Application for approval of the Aerocare Collective Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Aerocare Collective Agreement 2018 (the 2018 Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aerocare Flight Support Pty Ltd T/A Aerocare, now known as Swissport Australia Pty Ltd (referred to interchangeably in this decision as Aerocare and Swissport). The 2018 Agreement is a single enterprise agreement.

[2] A decision detailing the chronology of the matter and considering whether the statutory approval tests had been met, was issued by me on 20 December 2019 (December Decision).¹ That decision included a comprehensive Better Off Overall Test (BOOT) assessment. In the December Decision, I found that the 2018 Agreement meets all legislative requirements, with the exception that I was not satisfied the Agreement as it stood passed the BOOT.

[3] To remedy my outstanding BOOT concerns, I invited Aerocare to provide 6 additional undertakings:

“1. An undertaking which provides that split shifts will not be worked;

2. An undertaking which provides that employees will not work on any Afternoon Shift or Night Shift which does not continue for at least five consecutive afternoons or nights;

3. An undertaking that casual employees (or a defined group of casual employees) will not be rostered for the commencement of work in ordinary hours prior to 7.00AM, Monday to Friday;

4. An undertaking that a salary reconciliation will be undertaken for Leader 3 employees consistent with the decision of the full bench in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery [2017] FWCFB 1664, with the undertaking indicating the reconciliation will be at Aerocare’s initiative and specifying the frequency of a reconciliation;

5. An undertaking that casual employees will be paid overtime if they work more than the hours provided in the 2018 Agreement’s Clause 17.3 (and furthermore that Clause 17.3 be modified to have application to casual employees); and

6. An undertaking dealing with the reasoning in Opal² regarding the wages applying under the Ground Staff Award from the start of the first full pay period that starts on or after 1 July 2019.”³

[4] On 9 January 2020, in compliance with my Directions, Aerocare submitted additional undertakings. Further sets of undertakings were provided by Aerocare on 22, 23 and 24 January 2020 and finally two sets of undertakings on 29 January 2020. Each was in response to matters conveyed both by myself and the union bargaining representatives, the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Transport Workers’ Union of Australia (TWU).

[5] The context of each set of undertakings is that they replace those given by Aerocare earlier in the proceedings associated with this matter and set out in the December Decision. There are largely incremental differences between each set of undertakings given in January. The second of the 29 January 2020 Undertakings are therefore to be regarded as the final undertakings for the purposes of this decision. The second of the 29 January 2020 undertakings are referred to in this decision as the Final Undertaking or Final Undertakings.

[6] On 16 January 2020 in conformity with my Directions in the December Decision, the ASU and TWU each filed submissions in response to the 9 January 2020 undertakings. Further submissions were received from each union on 24 and 28 January 2020 and on 30 January 2020. The ASU and TWU each submit that the 2018 Agreement is not capable of approval even after the giving of the January undertakings. The ASU’s objections particularly relate to the matter of split shifts and the matter of overtime for short notice of shift changes. The ASU also raised a concern on 28 January 2020 about the treatment of car parking allowances for the purposes of Aerocare’s calculation of superannuation contributions; that issue led to a further exchange by me with the parties, and on 29 January 2020 the provision of the Applicant’s Final Undertakings. The TWU’s objections notably address the matters of split shifts, reasoning that the undertakings neither prevent the working of such shifts or prescribe what is to be paid in the event that they are, and the matter of the rates of pay to apply from the commencement of the 2018 Agreement, if approved. The TWU argues that, having found in the December Decision that the Ground Staff Award does not contemplate split shifts, the Aerocare undertakings now provide for them. The TWU also argue the undertakings amount to substantial changes, and are therefore not capable of acceptance, for reason of s.190(3)(b).

[7] Aerocare has addressed in its undertakings each of the six matters in the December Decision for which undertakings were requested, as well as dealing at my request with the additional matter of the calculation of superannuation contributions.

Issue 1 – Split Shifts (Undertaking 10)

[8] My findings in the December Decision included that the second portion of a split shift worked under the Ground Staff Award⁴ is to be paid at overtime rates.⁵ All the cases modelled by the Commission at that time showed recalculation of the wages for an employee working split shifts lead to the BOOT not being passed. To remedy this, I sought an undertaking that split shifts will not be worked.

[9] The 9 January 2020 undertaking provided by Aerocare was framed as “[s]plit shifts will not be used”.⁶ After objections from the ASU and TWU that the proposed undertaking used different language to that sought by the Commission and that it did not provide a monetary penalty if they were utilised the undertaking was amended by Aerocare to provide, as set out in the Final Undertakings, that:

“Split shifts will generally not be used. If the Company requires or directs that a split shift be worked, the second tranche of the split shift will be paid at the Employee's applicable Award overtime rate.”7

[10] The ASU and TWU asserted that accepting the original 9 January 2020 undertaking would result in substantial changes to the Agreement as “[s]plit shifts are plainly central to the operation of Swissport’s business and the entitlements of employees in the event that an employee undertakes two periods of work in a 24-hour period was central to the bargaining.”⁸ The TWU also put forward that Aerocare’s proposed undertaking is inconsistent with the Award;

“3. Firstly, the undertaking now contemplates that “split shifts” may be worked. The Award does not contemplate or permit split shifts in the sense of a single shift of ordinary time broken into two parts. Rather, as the Commission has found, a person who undertakes a second shift or second period of work on the same day would not be working ordinary hours and be subject to the recall or overtime provisions in clause 32. Any undertaking should not contemplate “split shifts”, but simply confer an entitlement overtime if an employee undertakes a second shift or period of work on the same 24 hours.

4. Secondly, the undertaking now proposes that overtime would only be payable if the company “requires or directs” a split shift be worked. As the Commission is aware, Swissport has repeatedly contended that it does not “require” working of a split shift if employees volunteer or nominate to work such shifts. Although that contention has been rejected with respect to clause 28.3(d) of the Award, a similar uncertainty should not be introduced into any undertaking. Overtime is payable under clause 32 of the Award for “all work done outside ordinary hours” and there is no reference to a requirement or direction. To comply with the Award, any undertaking must entitle employees to Award overtime if they perform work in a second shift or tranche in a 24-hour period. Concepts of a requirement or direction should not be introduced.” 9

[11] I do not accept this submission. The undertaking proposed by Aerocare uses the formulation that “[s]plit shifts will generally not be used” and then provides for a payment associated with an exception to the rule. When the December Decision put forward the need for an undertaking that split shifts not be worked, that did not prevent different formulations to be put forward by the Applicant, and – perhaps more importantly – did not prevent the incorporation of a penalty arrangement to ensure employees were better off overall, if for some reason split shifts were worked. While it may have been better to phrase the undertaking request as being that “split shifts will not be worked in ordinary time”, the Final Undertaking sufficiently addresses the BOOT concern expressed in the December Decision. As to the proposition that the second part of the undertaking may mean that split shifts could be used if requested by an employee instead of the employer, such would be to unreasonably strain the language of the undertaking. As a verb “used” means “to employ for some purpose; put into service ...”; “to avail oneself of; apply to one's own purposes …”; “to exploit (a person) for one's own ends”. 10 The context of why an undertaking was sought on this subject is well articulated in the December Decision, and I accept the undertaking given by Aerocare to be within that context and not otherwise – split shifts will not be used. They will not be employed by Aerocare or put into service, even where an employee comes forward and asks to do so. If Aerocare acquiesced to such a request, it would be putting into service something it undertook not to do.

[12] I am satisfied that the undertaking provided by Aerocare in the terms that “split shifts will generally not be used” coupled with payment of overtime rates payable on the second tranche of that shift if they are used removes my concern that employees who work split shifts may not be better off overall at least in relation to the operation of split shifts. I am also satisfied that acceptance of the Final Undertaking on this matter is not substantial change. The evidence relied upon by me in the December Decision is clear enough that the company came to offer split shifts in order to maximise working hours for individual employees and in response to requests to do so. On the other hand, Aerocare were clear that no split shifts would be offered if overtime rates had to be paid. Aerocare have amended this stance with the Final Undertaking, providing that “if the Company requires or directs that a split shift be worked, the second tranche of the split shift will be paid at the Employee’s applicable Award overtime rate.”¹¹ There is nothing before me that would lead to a finding that an undertaking on the subject of split shifts amounts to a wholesale reshaping of the Agreement.

Issue 2 – Non-Continuous Afternoon and Night Shifts (Undertaking 12)

[13] I found in the December Decision that “[t]he failure in the Aerocare and PwC modelling to account for a penalty payment for non-continuous afternoon and night shifts also has a significant effect. The entitlement to a payment for non-continuous afternoon and night shifts flows from Clause 30.5 of the Ground Staff Award”.¹² Commission modelling showed that the employees affected by this situation would not be better off overall.

[14] The 9 January 2020 undertakings provided by Aerocare to remedy this concern provided:

“If applicable, employees who work on any afternoon shift or night shift which does not continue for at least five consecutive afternoons or nights (including Saturdays and Sundays), must be paid at the rate of time and a half the applicable Award rate for all such shifts worked.”13 (emphasis added)

[15] The TWU submitted that the undertaking should explicitly state that the “applicable rate is time and a half of the permanent rate for permanent employees and the causal rate for casual employees.”¹⁴ The ASU have not filed any submissions addressing this undertaking.

[16] Aerocare amended the undertaking on Non-Continuous Afternoon and Night Shifts with the Final Undertaking providing the following:

“If applicable, employees who work on any afternoon shift or night shift which does not continue for at least five consecutive afternoons or nights (including Saturdays and Sundays), must be paid at the rate of time and a half of the Employee’s applicable Award rate for all such shifts worked.”15 (emphasis added)

[17] I am prepared to accept the undertaking in the terms provided by Aerocare in its Final Undertaking. The context of the requested undertaking is set out in the December Decision in those parts assessing certain BOOT scenarios.¹⁶ The modelling undertaken within those scenarios was constructed on stated assumptions about what may occur if the Ground Staff Award provisions applied instead of the 2018 Agreement’s provisions. The modelling suggested that if an undertaking were given that the Award’s non-continuous shift arrangements were to apply to employees (along with other provisions and undertakings) then the BOOT would be passed (in tandem with the other undertakings sought). The December Decision’s analysis did not call for an undertaking to be given that exceeded the requirement within the Award’s Clause 32.1(c) providing as it does, that overtime rates are to be “determined by dividing the appropriate weekly rate by 38”. I am satisfied that the undertaking removes the BOOT concern held by me. I am satisfied that the change is not substantial change, with it applying in the likely relatively limited circumstance of an employee whose afternoon or night shift roster does not continue for at least five consecutive afternoons or nights.

Issue 3 – Ordinary hours prior to 7.00AM (Undertaking 11(b))

[18] In the December Decision I found a potential detriment was showing in the Commission’s modelling for certain casual employees as a result of the hours which the employee was rostered, and that the concern may be removed with an undertaking which provides that casual employees will not be rostered for the commencement of work in ordinary hours prior to 7.00AM, Monday to Friday. The BOOT concern was in the “absence of early morning shift payments to people whose work commences no earlier than 4AM but prior to 7AM creates an imbalance in the pay comparisons between the 2018 Agreement and the Award. That imbalance is not adequately offset by a pre-dawn shift allowance.”¹⁷

[19] An undertaking has been provided by Aerocare with the Final Undertaking in the following terms:

“Casual employees engaged under the Agreement:

…

b. will not be rostered to commence ordinary hours prior to 7.00am, Monday to Friday;”.¹⁸

[20] The TWU have not directly objected to the undertaking provided by Aerocare, however it has suggested that an “alternative method of addressing this concern would be for an undertaking to be made to pay the shift allowances provided for under clause 30.3 of the Award”.¹⁹ The ASU have not filed any submissions addressing this undertaking.

[21] While the alternative put forward by the TWU appears viable, the question before me is whether the undertaking proffered by the Applicant will alleviate my concern, which it does. The product of the undertaking would mean that casual employees’ ordinary hours would not commence prior to 7AM Monday to Friday. Since work before 7:00AM will not be ordinary hours for a casual employee it follows that if, for some reason a casual employee’s work commenced before that time, it would not be ordinary time, but overtime. I am satisfied that the undertaking provided is in satisfactory terms and as such the BOOT concern is removed. I am satisfied that the change is not substantial change, with it applying in the likely relatively limited circumstance of a casual employee being limited as to when their ordinary hours may commence, Monday to Friday.

Issue 4 – Salary Reconciliation (Undertaking 9)

[22] In the December Decision, I sought a Beechworth²⁰ compliant reconciliation clause be provided in order to remedy the outstanding BOOT concern with Leader 3 employees. The evidence before the Commission was that “Leader 3” is a legacy classification from previous Agreements, referring to full-time employees on annualised salaries on a level effectively equivalent to that of a Senior Supervisor classification under the 2012 Agreement. The concern as it stands is that the marginal differences in pay rates for Leader 3 employees under the Agreement compared to the Ground Staff Award means that the employees may not be better off overall.

[23] Aerocare’s initial 9 January 2020 undertaking on the subject was in these terms:

“For each calendar quarterly period of employment of all Leader 3s engaged under the Agreement, the Company will conduct a comparison of the wages received for that calendar quarterly period under the Agreement and the wages they would otherwise have been provided with under the Award. Any shortfall in wages which would otherwise be payable under the Award plus an additional amount equal to 2.5% of the total shortfall will be paid to the Leader 3 in the next pay period after each review is completed. If the Leader 3 and the Company cannot reach agreement on the total amount which should be paid by the operation of this undertaking, the Dispute Resolution Procedure at clause 43 of the Agreement will be followed.”21 (emphasis added)

[24] The TWU submitted that it was unclear if the 9 January 2020 undertaking satisfies the requirements set out in Beechworth.²² Further it submitted that although the 9 January undertaking requires a comparison to be completed each quarter, “it does not appear to create an unequivocal entitlement to any particular payment” and “the undertaking addresses only “wages” and not other entitlements.”²³ The ASU have not filed any submissions addressing this undertaking.

[25] The 9 January 2020 undertaking was then amended by Aerocare by changing the reference to wages to “total remuneration” and providing an additional entitlement to payment in the event of a dispute about the quantum, with the Final Undertaking in these terms:

“For each calendar quarterly period of employment of all Leader 3s engaged under the Agreement, the Company will conduct a comparison of the total remuneration received for that calendar quarterly period under the Agreement and the total remuneration they would otherwise have been provided with under the Award. Any shortfall in total remuneration which would otherwise have been payable under the Award plus an additional amount equal to 2.5% of the total shortfall, will be paid to the Leader 3 in the next pay period after each review is completed. If the Leader 3 and the Company cannot reach agreement on the total amount which should be paid by the operation of this undertaking, the amount calculated by the Company will be paid (as per the above) and the Dispute Resolution Procedure in clause 43 of the Agreement will thereafter be followed.”24 (emphasis added)

[26] The requirements for a Beechworth compliant reconciliation clause undertaking include these matters:

1. The undertaking should state that the reconciliation will be conducted at the initiative of the employer;

2. The undertaking should set out how the reconciliation will be calculated;

3. The undertaking should indicate when such a reconciliation will be conducted (i.e each pay cycle or otherwise) noting that the Commissioner must be satisfied that the reconciliation is both frequent and definitive;

4. The undertaking should set out that in circumstances where it is revealed after a reconciliation is conducted that there is a shortfall between what that employee received under the Agreement compared to what that employee would have received under the Award, the employee will be reimbursed for that shortfall; and

5. In addition to being reimbursed for any shortfall the employee will also be paid a nominal amount above what they would have received if they were covered by the Award, so as to ensure employees will be better off after a reconciliation is conducted.

[27] I am satisfied on the material before me that the Final Undertaking provided is a compliant Beechworth undertaking. The undertaking clearly states that it will be Aerocare’s obligation to conduct the reconciliation and it reasonably sets out the basis upon which the calculation will be undertaken that is to compare the wages received under the 2018 Agreement with those that the employee would otherwise have been provided under the Ground Staff Award. It provides a definitive frequency for the reconciliation and makes unequivocally clear what an employee with a shortfall may reasonably expect to receive with a nominal payment above the strictly minimum amount. I am satisfied that the undertaking removes my concern relating to Leader 3 employees. I am satisfied that the change is not substantial change, since it does not involve a wholesale reshaping of the Agreement, with it affecting a limited group of employees.

Issue 5 – Overtime (Undertaking 11(c))

[28] In the December Decision I sought an undertaking that was two-fold in respect of overtime for casual employees, since not providing casual employees with access to overtime gave rise to a BOOT concern. The undertaking sought by me at that time would require that casual employees be paid overtime if they worked more than the hours provided in the Agreement’s Clause 17.3 and that Clause 17.3 be modified to have application to casual employees.

[29] The 9 January 2020 undertakings provided reads:

“Casual employees engaged under the Agreement:

…

c. will be paid overtime if they work in excess of the hours provided at clause 17.3 of the Agreement, which is amended as follows:

17.3 The Company’s management of fatigue is a key consideration in rostering. This means that a PSE or casual employee will not normally be rostered to perform work:

17.3.1 more than 12 hours in any day, or

17.3.2 more than 20 days in the same Roster Period, or

17.3.3 more than 152 hours in the same Roster Period.”²⁵

[30] The TWU submitted that the undertaking did not have the effect of aligning the entitlements under the Agreement with the entitlement to overtime provided by the Ground Staff Award. They also raise a concern that there is ambiguity as to the applicable overtime rate payable. The ASU have not filed any submissions addressing this undertaking.

[31] In an effort to address the concern of the ambiguity of the applicable overtime rate payable raised by the TWU, Aerocare provided an amended undertaking addressing casual employees in the Final Undertakings framed as:

“Casual employees engaged under the Agreement:

…

c. will be paid overtime in accordance with clause 16.2 if they work in excess of the hours provided at clause 17.3 of the Agreement, which is amended as follows:

17.3 The Company’s management of fatigue is a key consideration in rostering. This means that a PSE or casual employee will not normally be rostered to perform work:

17.3.1 more than 12 hours in any day, or

17.3.2 more than 20 days in the same Roster Period, or

17.3.3 more than 152 hours in the same Roster Period.”²⁶ (emphasis added)

[32] I have considered the material before me and am satisfied that the Final Undertakings on casual employees is consistent with the two-tier undertaking I sought in the December Decision. The undertaking removes the BOOT concern for casual employees. I am satisfied that the change is not substantial change, with it applying in the likely relatively limited circumstance of casual employees called upon to work in excess of the indicated limits of hours.

Issue 6 – Opal (Undertakings 7 and 8)

[33] In the December Decision I sought an undertaking to address the reasoning in Opal²⁷ and the changes in Award rates of pay since test time. The undertaking sought was to address the Award rates of pay from the start of the first full pay period that starts on or after 1 July 2019.

[34] Aerocare have provided undertakings including a table of classifications and rates of pay for Permanent Secure Employees (PSE’s) and for casual employees. These undertakings have changed over the six iterations of January undertakings, with Aerocare responding to a number of questions raised by the Commission as well as the ASU and TWU submissions. The Final Undertaking provides:

“From the first full pay commencing on or after this Agreement commences operation, the rates of pay for permanent secure employees engaged in the following classifications are amended as follows:

From the first full pay commencing on or after this Agreement commences operation, the rates of pay for casual employees (inclusive of casual loading) are as follows:

[35] In relation to the 9 January 2020 undertaking, the TWU argued that Aerocare has “provided no explanation as to how it is said that the proposed rates to apply upon the 2018 Agreement commencing operation would address the concerns raised by the Commission. In the absence of any explanation, the TWU is not able to comment on the approach adopted. However, it is noted that the rates proposed on operation appear to be lower than the current Award rates.”²⁹ The TWU’s later submissions in response to the further Aerocare amendments echoed this principal submission. The ASU also made submissions on the subject.

[36] Again, the question before the Commission is whether the undertaking given by Aerocare in the Final Undertakings alleviates the concerns identified in the December Decision.

[37] Upon receipt of the 9 January 2020 undertaking, the Commission undertook further modelling of the employees identified in paragraphs [214] – [215] of the December Decision, who were considered at that time to be detrimentally affected when Opal considerations were taken into account. Modelling of the improved wages in the 9 January 2020 undertaking showed three employees would still not potentially pass the BOOT, albeit by relatively small margins. The three employees were:

•  The person identified as QW3189, who would be classified as an AST Clerical Worker under the 2018 Agreement and a Level 1 employee under the Ground Staff Award;

•  The person identified as BZ8487. The employee is classified under the 2018 Agreement as a Supervisor/Special Duties Year 1 Clerical Worker, and would be a Level 4 employee under the Ground Staff Award; and

•  The person identified as DZ4266, identified as a Senior Supervisor.

[38] That issue was identified to the parties which led to the incremental changes provided by Aerocare in the 23, 24 and 29 January undertakings. The last of the Aerocare undertakings shows a BOOT pass for each of these employees, other than on the matter of superannuation contributions, which is dealt with further below, with the Commission’s recalculation as follows:

[39] It will be noticed in the above tables that the last row deals with the subject of superannuation and that the calculated rates are determined using the sum of the rows from “Mon - Fri Rate” through to and including “XMAS & Good Friday” and that each of the above employees had a potentially lower superannuation contribution under the 2018 Agreement than if they were paid under the Ground Staff Award. This means that the superannuation calculation in the above models does not take into account the payments made to employees for the car parking allowance provided for in Clause 25 of the 2018 Agreement. This is a conservative assessment consistent with the Commission’s standard BOOT analysis model – hence the qualifier in the model that one should “Check if should be used - complicated”. Because of what is set out below on the subject and the Final Undertaking given by Aerocare on the subject I am now satisfied that it would be misleading to make the comparisons set out in the tables and that each of the three employees now pass the BOOT, including when superannuation contributions are taken into account.

[40] The ASU in its submissions filed on 28 January 2020 raised a concern with the payment of superannuation being a BOOT assessment issue. The ASU submit that superannuation is not paid on the car parking allowance therefore employees would earn less superannuation under the 2018 Agreement than under the Ground Staff Award. 30 The non-payment of superannuation on the car parking allowance would lead to a BOOT fail. This concern has subsequently been addressed by Aerocare in their reply with the submission that superannuation is payable on the car parking allowance given the payment of the allowance forms a part of an employee’s ordinary time earnings.31 The payment of superannuation on the car parking allowance is therefore a legislative requirement.

[41] The Applicant’s submissions on the subject included that;

“… superannuation is in fact payable on the car parking allowance given that such payments form part of an employee’s ordinary time earnings. We are instructed that Swissport had assumed this formed part of the analysis undertaken but for the avoidance of any doubt, it confirms this to be the case. Given the payment of superannuation on these amounts is a function of our client’s legislative obligations, we do not understand that an undertaking is required on the issue.” 32

[42] While Aerocare submitted that an undertaking would not be required to address the ASU’s concern with superannuation, I did not accept that submission. I caused correspondence to be issued to the parties on 29 January 2020 inviting one further undertaking from Aerocare to make clear that superannuation is payable on the car parking allowance.

[43] In response Aerocare submitted the further undertaking sought by me on 29 January 2020 in the terms:

“For the purposes of clause 23 (Superannuation), superannuation contributions made by the Company on behalf of an employee will be calculated in such a way that payments made to the Employee for the car parking allowance provided for in clause 25 are included in the calculation of ordinary time earnings.” 33

[44] While the views of the TWU and ASU were sought on this final matter, neither made submissions on the subject. After consideration of the effect of the Final Undertakings and all the available material on the subject, I am satisfied that the wages set out ensure that each Award covered employee and prospective employee would be better off under the 2018 Agreement than under the Ground Staff Award. I am satisfied that the changes made to wages in the undertaking and the calculation of superannuation contributions are not substantial change. The changes made increase benefits to employees in such a way that does not lead to the wholesale reshaping of the Agreement such that it bears no resemblance to the pre-undertaking Agreement.

Further issue – Overtime for short notice shift changes

[45] The ASU also provided submissions on the subject of overtime for short notice shift changes. The Agreement does not provide for overtime to be paid for shift changes without two days’ notice. The ASU acknowledge that an undertaking on this point was not sought by me. They however submit that without an undertaking replicating Clause 30.2(c) of the Ground Staff Award, the Agreement cannot be approved as it would not pass the BOOT.

[46] While I note the ASU submissions, and why they may be made, I do not hold a concern on this subject and do not request an undertaking be given.

Conclusion

[47] The Applicant has provided written undertakings. A copy of the Final 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 the undertakings will not result in substantial changes to the Agreement. The approach taken by me in relation to whether the undertakings, whether individually or in combination, amount to substantial change is set out in the December Decision.³⁴ I do not repeat the principles but rely upon them in this decision. Neither individually, in combination nor in total do the Final Undertakings amount to substantial change. The Final Undertakings are taken to be a term of the Agreement.

[48] Subject to the undertakings referred to above, 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.

[49] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[50] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[51] The Australian Municipal, Administrative, Clerical and Services Union and The Transport Workers’ Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[52] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2020. The nominal expiry date of the Agreement is 30 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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Annexure A

1 [2019] FWC 8614.

2 Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care [2019] FWCFB 1716.

3 December Decision at [228].

4 Airline Operations—Ground Staff Award 2010 (MA000048).

5 December Decision at [99].

6 9 January Undertakings, 9 January 2020.

7 Final Undertakings, 29 January 2020.

8 TWU submissions, 16 January 2020 at [3].

 9   TWU submissions, 30 January 2020.

 10   Macquarie Online Dictionary, accessed 30 January 2020.

11 Final Undertakings, 29 January 2020.

12 December Decision at [180].

13 9 January Undertakings, 9 January 2020.

14 TWU submissions, 16 January 2020 at [12].

15 Final Undertakings, 29 January 2020.

16 December Decision; see especially [180] – [200].

17 December Decision at [220].

18 Final Undertakings, 29 January 2020.

19 TWU submissions, 16 January 2020 at [13].

20 Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery [2017] FWCFB 1664.

21 9 January Undertakings, 9 January 2020.

22 Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery [2017] FWCFB 1664.

23 TWU submissions, 16 January 2020 at [15].

24 Final Undertakings, 29 January 2020.

25 9 January Undertakings, 9 January 2020.

26 Final Undertakings, 29 January 2020.

27 Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care [2019] FWCFB 1716.

28 Final Undertakings, 29 January 2020.

29 TWU submissions, 16 January 2020 at [19].

 30   ASU submissions, 28 January 2020.

 31   Aerocare submissions, 29 January 2020.

 32   Ibid.

 33   Final Undertakings, 29 January 2020.

34 [2019] FWC 8614, see from [230].