Why Every Business Should Invest in a Social Media Fraud Analyst.pdf
Future of BOOT and loaded rates
1. THE FUTURE OF THE BOOT AND LOADED RATES IN
ENTERPRISE AGREEMENTS
2. Agenda
o Enterprise bargaining under the Fair Work Act 2009 (Cth) and its predecessors
o Approving enterprise agreements – the BOOT and triage process
o Trends in loaded rates agreements
o Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887
o SDA v Beechworth Bakery [2017] FWCFB 1664
o Loaded Rates Case
o Lessons from recent cases
o Qld State Government agencies and local councils: the QIRC approach
o Will loaded rates replace penalty rates?
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Enterprise Bargaining in Australia
1900’s 1990
1996 2009
Awards set by industrial tribunals Certified agreements between
unions and employers
No disadvantage test
Union, non-union and individual
collective agreements
Union and non-union enterprise
agreements. Parliament regulates
minimum conditions. BOOT
5. Enterprise
Bargaining under
the FW ActKey legislative provisions - Part 2-4 of FW Act
o Bargaining and representation during bargaining
o Pre-approval steps and applications for approval
o Genuinely agreed and BOOT
o Agreements approved with undertakings
o Person must not contravene a term of an enterprise
agreement (s 50) – civil remedy provision
6. BOOT
Sections 186(2)(d); 193 FW Act
o EA passes the BOOT if the FWC is satisfied, as at the test
time, that each award covered employee, and each
prospective award covered employee, would be better off
overall if the agreement applied than the modern award
o Onus on employer to show agreement passes BOOT
o Debate about whether BOOT should apply to each worker
individually or the majority of workers on a more general
analysis
o Difficult where non-monetary benefits provided
7. Which Modern
Award?
o Only one modern award covers an employee
o Will need to consider multiple modern awards in applying
the BOOT if different awards cover different classes of
employees
o Consider the major, substantial or principal aspect of the
work performed by the employee at the test time
o Question of fact
8. Applications for
approval – FWC
o 6 October 2014 – 30 June 2015 triage pilot implemented
o Triage implemented to “fast track” agreement making
process
o Full assessment of statutory requirements in relation to
bargaining, voting and other approval requirements
o Independent report 2015 – triage is efficient and more
cost effective
o July 2018 – What’s Next Program
Triage approach
10. Loaded rates
o Award benefits incorporated into one loaded rate
o Can include:
• shift allowances
• weekend penalties
• payment for reasonable additional hours
• payment for overtime
• work-related allowances
o Employers used reconciliation clauses and undertakings to
pass BOOT
11. Har t v Cole s Su pe rmarke ts Au stralia Pty Ltd
[201 6] FWCFB 2887
Facts: Decision:
o Agreement approved in first instance with
higher base rate of pay and non-monetary
benefits (in lieu of no or reduced penalty
rates)
o Part-time employee appealed decision on
basis the agreement left a number of
employees worse off than the award
o Provided certain roster scenarios to the
FWC
o Each worker must be better off – not the
majority of workers
o 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
12. SDA v Be e ch wor t h Bake r y [201 7] FWCFB 1 664
Facts: Decision:
o Union objected to decision to approve
agreement on same grounds as Coles
o Employer argued roster scenarios put
forward by union weren’t used by the
company
o Beechworth gave a reconciliation
undertaking that employees could request
every four months to compare what they
would have been paid under the award
o Every roster scenario permitted under the
agreement is relevant and must be
considered for the BOOT, even if not used
by the employer
o Undertaking not capable of satisfying
concerns regarding BOOT because:
• Must create enforceable right to
payment – here it didn’t;
• Only arises if employee requests it;
• Delay in employee being paid
13. Aldi Foods Pt y Limit e d v SDA [201 7] HCA 53
Facts: Decision:
o FWC determined agreement passed BOOT
and was genuinely agreed
o Full Bench agreed with FWC
o Full Court determined that because 17
managers were not working in the positions
at the time of the vote, agreement was not
genuinely agreed. Agreement also did not
pass BOOT
o High Court – Full Court wrong about
genuinely agreed, correct about BOOT
o It is not whether the employees voting for
the agreement are actually employed
under its terms, but rather whether the
agreement covers all employees who may
in future have the terms and conditions of
their jobs regulated by it.
o Not enough that a reconciliation clause will
pass the BOOT
14. Loaded Rates
Case
o 8 applications for approval of enterprise
agreements referred to Full Bench
o All agreements raised issues about how the
BOOT should be applied where loaded rates
are concerned
o Security, retail and labour hire
15. Loaded Rates Case
Loaded Rates Agreements [2018] FWCFB 3610
Each employee Ordinary hours Current employees
o Each employee to be
considered
o Members of a class
must have a common
BOOT outcome
o Examine practices
o Classes identified
based on working
hours
o Look at what
agreement permits
o Look at existing
rosters and compare
loaded rates against
penalty rates
o May be evidence
rosters permitted are
not practicable
16. Loaded Rates Case
Loaded Rates Agreements [2018] FWCFB 3610
Prospective employees Evidence BOOT
o Defined workplaces –
predictions about
rosters based on
existing employees
o New business – wide
range of patterns need
to be considered
o Information
concerning work
patterns should be
included in F17
o Mathematical
assessment
o Will be more difficult
where non-monetary
benefits provided
17. Loaded Rates
Case - Casuals
o Difficult where casual employees concerned
o “True casuals” and “Regular Casuals”
Tips to pass the BOOT for true casuals:
o providing the casual with some other benefit to offset the
disadvantage;
o imposing some restriction on when a casual could be
engaged to work; and/or
o require the hours of a casual to be balanced over time
between hours which attract penalties and those which
don’t.
18. Lessons from recent cases
Who is preparing your Form F17?
Application by CFMMEU [2018] FWC 4995 (31 July
2018)
Misleading content on Form F17 may result in
criminal charges
Derbarl Yerrigan Health Services Inc [2018] FWCFB
2721 (29 June 2018)
Don’t rely on advice from the FWC Civica BPO Pty Ltd [2018] FWC 4376 (31 July 2018)
Undertakings are capable of rectify the BOOT where
loaded rates are concerned
CFMMEU v Allstyle Concrete [2018] FWCFB 3823
(28 June 2018)
Have you explained enough? / Can’t genuinely
agree to some employment groups
One Key Workforce Pty Ltd v Construction, Forestry,
Mining and Energy Union [2018] FCAFC 77
(25 May 2018)
EA with three employees is ok
Thiess Pty Ltd v CFMMEU [2018] FWCFB 2405 (7
June 2018)
19. Enterprise
bargaining under
the IR Act
Key legislative provisions: Chapter 4, Part 1 IR Act
o Collective bargaining process
o Good faith bargaining
o Conciliation and arbitration
o Granting applications – no disadvantage test
20. Enterprise
bargaining under
the IR Acts 199, 210 Industrial Relations Act 2016 (Qld)
o No disadvantage test
o Applied on global basis. Provided that any reductions in
employment conditions are offset by improvements, so
that over all employees do not suffer a disadvantage, an
agreement will pass the test
o Can certify agreement notwithstanding it reduces
entitlements or protections provided it isn't against the
public interest
21. Au st ralian Su gar M illin g Associat ion ,
Qu e e n sland, Un ion of Employe rs v th e Au stralian
Worke rs’ Un ion of Employe e s, Q u e e n sland an d
O t h e rs (2004) 1 77 QGIG 1
Facts: Findings:
o Agreement contained a system of “flexible
working hours”, removing right to overtime
payments and replacing it with a time off in
lieu system
o Company maintained system was a short
term emergency arrangement to reduce
labour costs over the life of the agreement
o Reconciliation undertaking provided
o Agreement didn’t pass no-disadvantage
test – reduced entitlements to overtime
payments
o Overall disadvantage was greater for those
seasonal employees
o Use of flexible work system was a
reasonable strategy to deal with a short-
term crisis
o Although the agreement didn’t pass the
no-disadvantage test, it was approved on
the public interest exception
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Will loaded rates replace
penalty rates?
Hospitality Award 2010 Small business
Award system is complex Penalty Rates Decision
“Alternative” payment arrangement
permitted – loaded rate is 25%
above award rate
Agreements not always appropriate
Difficult for employers to comply Loaded rates would remain part of
safety net
23. Murray P ro c te r
Pa r t n e r
P ho ne : (07) 3001 9225
04 02 967 1 71
Emai l : M.Proct er@ Cla rkeKa nn.com.a u
![Agenda
o Enterprise bargaining under the Fair Work Act 2009 (Cth) and its predecessors
o Approving enterprise agreements – the BOOT and triage process
o Trends in loaded rates agreements
o Hart v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887
o SDA v Beechworth Bakery [2017] FWCFB 1664
o Loaded Rates Case
o Lessons from recent cases
o Qld State Government agencies and local councils: the QIRC approach
o Will loaded rates replace penalty rates?](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)