ENTERPRISE AGREEMENTS – better off overall test – ss.185, 604 Fair Work Act 2009 – appeal – Full Bench – appellant made application for the approval of the All Trades Queensland P/L Apprentice/Trainee Enterprise Agreement 2015 (2015 Agreement) – 2015 Agreement was opposed by the Construction, Forestry, Mining and Energy Union (CFMEU), the Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and Australian Manufacturing Workers’ Union (AMWU) (collectively, the Unions) – dispute in the proceedings as to what were the applicable comparator instruments for the purpose of the application of the ‘better off overall test’ (BOOT) – appellant’s position was that the applicable comparator instruments were a number of Queensland State awards and orders preserved as ‘notional agreements preserving State awards’ (NAPSAs) – Unions’ position was that the relevant instruments were the modern awards, and that the 2015 Agreement was incapable of passing the BOOT by reference to these instruments – at first instance the Commission determined the relevant modern awards were the comparator instruments – appellant contended that decision was in error and should be quashed – appellant supported by the Housing Industry Association (HIA), the Queensland Master Builders Association Industrial Organisation of Employers (QMBA), and the Group Training Association of Queensland and Northern Territory Limited trading as the Apprentice Employment Network (Apprentice Employment Network) – Full Bench considered permission to appeal should be granted – appeal raised issues which were novel, complex, and had broader implications for the pay rates and conditions of employment for trainees and apprentices in Queensland – appellant’s submissions focused upon whether the relevant NAPSAs continued to apply to, or cover, it and its employees covered by the 2015 Agreement – Full Bench considered the critical question was whether the relevant modern awards relied upon by the Unions covered employees to whom the 2015 Agreement would apply if approved (regardless of whether the NAPSAs covered or applied to such employees) – s.48(1) of FW Act provides that a modern award covers an employee and an employer if it is expressed to cover them – Full Bench considered it was clear that the modern awards relied upon by the Unions were, at the ‘test time’ for the 2015 Agreement expressed to cover various categories of employees to whom the 2015 Agreement would apply if approved – question was then whether anything in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) altered that position – Full Bench held Item 16 of Schedule 5 of the Transitional Act, while it operates to continue the coverage of award-based transitional instruments (ABTIs) to which it applies, does not displace the coverage of any modern award to an employee – item 16(5), while it provides that a modern award shall not apply to an employee while an ABTI still covers the employee, does not provide that a modern award shall not continue to cover the employee – Full Bench found no inherent conflict in there being coverage of an employee by two different instruments, since coverage is only concerned with the potential and not the actual application of the instrument – held decision at first instance was correct – permission to appeal granted – appeal dismissed – application for approval of 2015 Agreement referred back to Spencer C for final determination in accordance with this decision. Appeal by All Trades Queensland P/L against decision of Spencer C of 12 August 2016 [[2016] FWC 2832] Re: Construction, Forestry, Mining and Energy Union and Ors
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