When an agreement passes

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adjournment

To end proceedings or to suspend them to another time or place.

appeal

To request that a decision of a single member of the Commission be reviewed by a Full Bench to determine if the decision made is consistent with the Fair Work Act 2009. An appeal can only be made on the grounds that an error of law or fact has been made. A person must seek the permission of the Commission to lodge an appeal by lodging a Form F7—Notice of Appeal.

bullying at work

Bullying at work, as defined by the Fair Work Act 2009, occurs when:

a person or a group of people behaves unreasonably and repeatedly towards a worker or a group of workers while at work, and
the behaviour creates a risk to health and safety.

Bullying does not include reasonable management action carried out in a reasonable manner.

bullying policy

A formal procedure outlining the processes used, including disciplinary measures, to resolve bullying in the workplace. A policy would normally include definitions of bullying, a worker's responsibility in relation to bullying and the step by step process that should be adopted when bullying is reported.

code of conduct

A set of rules and responsibilities that govern an organisation. A code of conduct generally sets out appropriate and inappropriate behaviour of employees within an organisation.

Commission

Abbreviation for Fair Work Commission.

Commonwealth

Refers to the Commonwealth government or an Australian territory.

conference

A private proceeding conducted by a Fair Work Commission Member.

constitutionally covered business

A constitutionally covered business is:

a proprietary limited company
a foreign corporation
a trading or financial corporation formed within the limits of the Commonwealth
the Commonwealth
the Commonwealth authority
a body corporate incorporated in a territory
a business or organisation conducted principally in a territory or Commonwealth place.

It does not include sole traders, partnerships, some state government employees, corporations whose main activity is not trading or financial.

decision

A judgment or conclusion reached after considering the facts and law. A decision in relation to a matter before the Commission can include the names of the parties and will generally outline the basis for the application, comment on the evidence provided and include the judgment of the Commission in relation to the matter. A decision can be made by a single member or a Full Bench of the Commission. It is legally enforceable.

directions

Instructions given to the parties by the Commission that set out a timetable in accordance with which they must file in the Commission and serve on each other an outline of submissions, witness statements and any supporting documents.

evidence

Information which tends to prove or disprove the existence of particular belief, fact or proposition. Certain evidence may or may not be accepted by the Commission, however the Commission is not bound the normal rules of evidence. Evidence is usually contained within or attached to a witness statement or provided verbally by a witness in a hearing.

Fair Work Act 2009

The principal Commonwealth law governing Australia's workplace relations system. Go to the Fair Work Act 2009.

Fair Work Commission

Australia's independent, national workplace relations tribunal, established under the Fair Work Act 2009, from July 2009 to December 2012. Fair Work Australia assumed the functions of the Australian Industrial Relations Commission, and the Australian Fair Pay Commission and the agreement-making function of the Workplace Authority. Fair Work Australia was renamed the Fair Work Commission on 1 January 2013.

Full Bench

A Full Bench of the Fair Work Commission is convened by the Fair Work Commission President and comprises at least three Fair Work Commission Members, one of whom must be a Deputy President. Full Benches are convened to hear appeals, matters of significant national interest and various other matters specifically provided for in the Fair Work Act 2009.

harassment

Unwanted and offensive conduct or behaviour by a person or persons directed towards another person based on an attribute such as a person’s age, gender, race, religion or a disability. Harassment can be physical or psychological.

hearing

A public proceeding conducted by a Fair Work Commission Member. A hearing is generally more formal than a conference, and may be held if the matter can't be resolved at mediation, conciliation or conference.

jurisdiction

The scope of the Commission’s power and what the Commission can and cannot do. The power of the Commission to deal with matters is contained in legislation. The Commission can only deal with matters for which it has been given power by the Commonwealth Parliament.

jurisdictional objection

An objection to an application on the basis that the Fair Work Commission does not have jurisdiction to deal with the matter. A jurisdictional objection is not simply that the respondent thinks the applicant's case has no merit.

matter

A case or legal proceeding before the Commission.

mediation

An informal, confidential and voluntary process. It is one of the processes used by the Commission to facilitate the resolution of a grievance or a dispute between parties by helping them reach an agreement.

Member

A person appointed by the Governor-General to decide matters at the Commission. A Member may be the President, a Vice President, a Deputy President or a Commissioner.

non-constitutional corporation

An entity that is not a constitutional corporation. The following are not constitutional corporations:

sole traders
partnerships
some state government bodies
corporations whose activities do not include significant trading or financial functions (e.g. some charities).

order

An order is a ruling made by a Fair Work Commission Member after he or she hears your case. Once an order has been made, anyone bound by that order must follow it.

outcome

The end result of an application made to the Commission.

outline of submissions

A written document that clearly sets out the key elements of a case. All facts, information and evidence that you wish to bring to the attention of the Commission should be included in your outline of submissions.

partnership

An organisation in which two or more persons carry on a business together and it is not a constitutional corporation as defined.

party

A person or organisation involved in a matter before the Commission. A party is generally known as either an applicant or a respondent.

principal

A person or business that has entered into a contract for services with an independent contractor.

private enterprise

A business owned and operated by private individuals for profit, instead of by a government or its agencies.

procedural fairness

When persons are treated equally or fairly before the law (also known as due process). For example, procedural fairness occurs when both parties to a dispute have an opportunity to be heard or to defend themselves.

pty ltd

A proprietary limited company. A constitutionally covered business.

reasonable management action

In relation to an anti-bullying application, reasonable management action is the action or behaviour of management that is considered to be carried out in a reasonable manner. Reasonable management action does not constitute workplace bullying.

Reasonable management action may include:

performance management processes
disciplinary action for misconduct
informing a worker about unsatisfactory work performance or inappropriate work behaviour
asking a worker to perform reasonable duties in keeping with their job, and
maintaining reasonable workplace goals and standards.

In each of these examples, if they are not carried out in a reasonable manner, then they could still be considered bullying.

Rules

The Fair Work Commission Rules 2013.

service/to serve

A requirement to send a copy of a document (and all supporting documents) to another party or their representative, usually within a specified period. A person’s obligation to serve documents can be met in a number of ways. The acceptable ways in which a document can be served are listed in Parts 7 and 8 of the Fair Work Commissions Rules 2013.

sole trader

An organisation in which one person is responsible for the business.

WHS

Abbreviation for work health and safety.

WHS state or territory regulator

A body established by a state or territory government which regulates WHS laws in a particular state or territory. To find contact details for the regulator in your state or territory, go to the Enquiries page.

witness statement

A person who gives evidence in relation to something they saw, heard or experienced. A witness is required to take oath or affirmation before giving evidence at a formal hearing. The witness will be examined by the party that called them and may be cross examined by the opposing party to test their evidence.

worker

In relation to an anti-bullying application, the definition of a worker is drawn from the Work Health and Safety Act 2011. A worker can include:

an employee
a contractor or subcontractor
a person employed by a labour hire company who is working at a particular business or organisation
an outworker
an apprentice or a trainee
a work experience student
a volunteer.

Only people who are considered to be workers may apply for an order to stop bullying at work.

workplace

A place where a person performs work.

workplace bullying

See bullying at work.

When a non-greenfields enterprise agreement passes the BOOT

An agreement that is not a greenfields agreement passes the better off overall test (BOOT) when the Fair Work Commission is satisfied that each present and prospective award covered employee would be better off overall if the agreement applied rather than the relevant modern award.^[1]

The Commission needs to be satisfied that, weighing the agreement provisions as a whole with those in the award, an employee is better off overall.^[2]

Related information

Case examples

Passes the better off overall test

Re Solar Systems Pty Ltd

Re Solar Systems Pty Ltd [2012] FWAFB 6397 (Watson VP, Sams DP, Deegan C, 24 August 2012).

At first instance, the Commission refused to approve the Solar Systems Pty Ltd Enterprise Agreement 2011 on the basis that the agreement did not pass the BOOT.

The employer appealed the decision, asserting that the Commission erred in approaching and applying the BOOT and in determining that the agreement did not pass the BOOT.

In granting permission to appeal and quashing the first instance decision, the Full Bench affirmed the approach to the BOOT taken by the Full Bench in Re Armacell Australia Pty Ltd and stated that the task of applying the BOOT is best expressed as applying the words in s.193.

The Full Bench stated that, for the purposes of the BOOT, 'a matter needs to be advantageous or disadvantageous. It is then a matter of balancing the items that fall within the two categories to come to an overall view.' The Full Bench was not satisfied that the first instance decision had done this. The Full Bench concluded that the Commission did not adequately or fairly apply the terms of the BOOT to the agreement, and placed little weight on the higher wages or further wage increases provided for in the agreement.

The Full Bench remitted the approval application to the Commission and the agreement was subsequently approved.

Re Datatech Australia Pty Ltd

Re Datatech Australia Pty Ltd [2013] FWCA 2313 (Bull C, 16 April 2013).

An application was made for the approval of the Datatech Australia Pty Ltd (NSW) Enterprise Agreement 2013–2017. The agreement provided for an ordinary span of hours between 5:00 am and 7:00 pm. The relevant modern award provides for an ordinary span of hours from 6:00 am to 6:00 pm.

The Commission questioned the increase in the spread of hours compared to the relevant modern award and how employees covered by this agreement were better off overall. The applicant advised that the rates of pay in the agreement were significantly higher, and consequently compensate for the increase in the span of ordinary working hours.

The Commission was satisfied that the increase in the span of ordinary hours satisfied the better off overall test, the agreement was approved.

Transport Workers' Union of Australia v Jarman Ace Pty Ltd T/A Ace Buses

Transport Workers' Union of Australia v Jarman Ace Pty Ltd T/A Ace Buses [2014] FWCFB 7097 (Catanzariti VP, Boulton J, Cambridge C, 28 October 2014).

An application was made seeking the approval of a single-enterprise agreement to be known as the Ace Buses Enterprise Agreement 2014. The agreement was to cover 69 casual employees, engaged as Bus Drivers (who transported school aged children with physical and intellectual disability between their homes and their school), Bus Supervisors (one of whom must accompany the Bus Driver on all trips) and administration staff.

At first instance, the Commission was satisfied that the agreement met the BOOT, and approved the agreement.

The TWU appealed, claiming that the Commission had erred in considering the benefits said to flow from the agreement and therefore had failed to apply the BOOT correctly. Specifically, the TWU was concerned about the Commission's characterisation of the following arrangements as 'non-monetary benefits':

the commencement of work from home, rather than a centralised depot
the use of buses for personal purposes, and
the use of mobile phones for personal purposes.

In addition, the TWU contended that the split shift arrangements under the agreement were significantly less beneficial than those applying under the relevant modern award and that the Commission had not accounted for the situation of employees who did not receive the above benefits.

The Full Bench stated that the application of the BOOT is a matter that involves the exercise of discretion and a degree of subjectivity or value judgement.

The Full Bench determined that the TWU had not demonstrated any error in the first instance decision and accordingly, permission to appeal was refused.

Does NOT pass the better off overall test

Re The Andrew Crawford Group Pty Ltd T/A Crawford Group Security and Investigations

Re The Andrew Crawford Group Pty Ltd T/A Crawford Group Security and Investigations [2013] FWC 5858 (O'Callaghan SDP, 19 August 2013).

An application was made for approval of The Andrew Crawford Group Pty Ltd Enterprise Agreement 2013. The agreement applied to employees who worked as static guards, crowd controllers or 'cash in transit escorts'.

The Commission did not consider that the agreement met the BOOT. Additional information provided by the employer addressed the concerns in relation to the agreement making process and the BOOT, with the exception of the Commission's concerns regarding pay rates for the crowd controller classification. For those employees, rates/penalties under the proposed agreement were higher than the award during the week but were lower for weekend and public holiday work. The majority of work for crowd controllers took place Thursday to Saturday.

The employer submitted that the agreement should be approved on the basis that the Commission had approved other agreements for its competitors with a similar discrepancy in rates.

The Commission was not satisfied that the agreement met the requirements of the BOOT with respect to the crowd controller classification. Following a conference, the employer offered an undertaking that the difference between the rates for weekend work under the relevant award and the agreement would not be more than the same difference under other agreements approved by the Commission.

Even with proposed undertaking, the Commission was not satisfied that the crowd controller employees received other benefits under the agreement to compensate for the lower weekend wages. Accordingly, the Commission was not satisfied that the agreement met the BOOT and the application for approval was refused.

Agreement included contingency or discretionary clauses

Re Glen Eden Thoroughbreds Pty Ltd T/A Ray White Shailer Park [2010] FWA 7217 (Asbury C, 16 September 2010).

An application was made for the approval of the Ray White Shailer Park Enterprise Agreement 2010. The application was opposed by the Property Sales Association of Queensland, Union of Employees (the PSAQ). The PSAQ submitted that the terms of certain provisions caused the agreement to fail the BOOT.

The Commission found that the agreement contained provisions usually found in common law contracts or implied into contracts by the common law (such as provisions dealing with restraint of trade, confidential information and intellectual property). Such provisions were not found in the award nominated for the purposes of establishing whether the agreement passed the BOOT. Generally, such provisions are not found in awards. In such cases the Commission can consider whether by including such terms in an enterprise agreement, employees are disadvantaged because the agreement imposes obligations or restrictions on them which are not imposed by a relevant award or under relevant common law principles.

The fact that agreement clauses involve contingent matters or discretion on the part of the employer that may or may not be exercised, should result in such clauses being viewed differently for the purposes of the BOOT. It must be assumed that contingent or discretionary clauses in agreements will be applied and they must be assessed against the terms of a relevant award on the same basis as other provisions of the agreement.

The Commission determined the inclusion of such terms was likely to result in a situation where award covered employees, both current and prospective, would not be better off overall if the agreement applied.

Not better off overall even when base rates of pay applied

Re KBK Security Services and Sentinel Traffic Control Service t/a KBK Enterprises Pty Ltd [2012] FWA 7336 (Asbury C, 27 August 2012).

An application was made for approval of the Sentinel Traffic Control Services Enterprise Agreement 2011. The primary activity of the employer was traffic control and security services. The AWU sought to be heard in relation to the application for approval of the agreement. The AWU also sought that the Commission refuse to approve the agreement on grounds including that it did not pass the BOOT.

The Commission found the agreement contained a number of terms that would result in award covered employees and prospective award covered employees not being better off overall. The effect of these terms did not appear to be balanced by corresponding benefits in the agreement.

The wage rates in the agreement were marginally above or marginally below the wage rates for corresponding classifications in each of the relevant awards. In the event the agreement was approved, s.206 of the Fair Work Act would operate so that the base rates in the agreement would not be less than the relevant modern award rate. However, even allowing for the effect of s.206, the rates in the agreement were not sufficient to offset the removal of other benefits in the awards.

The Commission was not satisfied that the BOOT had been met. The application for approval of the agreement was refused.

When a greenfields agreement passes the BOOT

A greenfields agreement passes the better off overall test if the Commission is satisfied, as at the test time, that each prospective award covered employee would be better off overall if the agreement applied than if the relevant modern award applied.^[3]

Case example

Passes the better off overall test

Greenfields agreement

Re Meales Concrete Pumping (Qld) Pty Ltd [2012] FWAA 6089 (Sams DP, 19 July 2012).

An application was made for approval of a greenfields agreement to be known as the Meales Concrete Pumping (QLD) Pty Ltd Ichthys Onshore Construction Greenfields Agreement. The agreement was proposed to cover craft and construction employees on the Ichtys Onshore Construction Project engaged in on site construction work, on site commissioning work and onshore marine construction work and related activities at the marine offloading facility at Blaydin Point, Northern Territory. The agreement was negotiated with the AWU, AMWU, CFMEU and CEPU.

The agreement provided for a number of conditions which either replicated current industry standards, or were significantly in excess of or more beneficial than the terms of the relevant award. The Commission was satisfied that the agreement passed the BOOT.

Upon reviewing the terms of the preapproval process documentation and the agreement itself, the Commission was satisfied that all of the requirements of the Fair Work Act had been met, and that it was in the public interest to approve the agreement.

References

^[1] Fair Work Act s.193(1).

^[2] National Tertiary Education Industry Union v University of New South Wales [2011] FWAFB 5163 (Harrison SDP, Sams DP, Deegan C, 10 August 2011) at para. 47, [(2011) 210 IR 244].

^[3] Fair Work Act s.193(3).

Updated time

Last updated

24 May 2019

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