ENTERPRISE AGREEMENTS – approval – ss.180, 185, 604 of Fair Work Act 2009 – permission to appeal – Full Bench – decision at first instance issued on 9 April 2015 approving MSS Security QLD Enterprise Agreement 2014-2018 with an undertaking – appeal lodged by appellant on 30 April 2015 – whether employees better off under Award or Agreement – appeal heard and Full Bench decision issued on 12 November 2015 – permission to appeal granted, appeal upheld, Full Bench concluded Agreement to be approved with amended undertaking [[2015] FWCFB 6923] – Second approval decision (Presidential decision) issued on 1 December 2015 setting aside decision at first instance and approving Agreement with amended undertaking – Full Court of Federal Court of Australia quashed both Full Bench and Presidential decisions on 23 August 2016 and ordered Full Bench to rehear and decide appellant’s appeal according to law [[2016] FCAFC 124] – Full Bench reheard appeal on 5 December 2016 – permission to appeal granted in public interest – appeal raises important questions concerning application of the better off overall test (BOOT) where Member’s discretion to determine whether employees are better off under Agreement is in dispute – Full Bench to decide whether Commission erred by accepting the Agreement passed the BOOT – appellant submitted that Commission required to conduct and assessment to determine which clauses were more and less beneficial than Award, then make overall assessment of whether an employee would be better off under the Agreement – contended that Commission erred in failing to appreciate the effect of clause 4.3.5(a) of the Agreement – contended that Commission erred in relying on Harland – contended that Commission erred in approving Agreement while it contained clause 4.3.6 and in accepting undertaking offered by Respondent – asserted that by requiring an undertaking at all the Commission recognised that the Agreement did not pass the BOOT – should not have accepted undertakings, which effect would offend s.190(3)(a) of FW Act – should have refused to approve pursuant to s.192 – approval would result in contravention of s.323 – respondent contended the combined effect of clauses 4.3.1 and 4.3.5 would result in Agreement passing BOOT – asserted that its argument was accepted by both Commission and Full Bench and should likewise be accepted now – submitted that overtime is payable for any additional hours worked within cycle under Award, which is exactly the same under the Agreement – submitted that no provision of the Award determines how or when the ‘averaged’ hours are to be worked within roster cycle – asserted that no provision of the Award prohibits or prevents an employer allocating overtime within the roster cycle as it sees fit – respondent asserted that the need for an undertaking arises where a ‘concern’ exists, not that the Agreement doesn’t pass the BOOT and in any even the purpose of an undertaking is to resolve any BOOT issue – contended that the appellant’s assertions in relation to contravention of FW Act were without foundation – submitted that Commission should rehear application, consider statutory requirements and, if satisfied, should approve and provide reasons – Full Bench noted that decision under appeal is of discretionary nature and not open for Bench to substitute its view in the absence of error of appellable nature – noted that a key consideration regarding agreement approval is a determination that the Agreement passes the BOOT – NTEU v UNSW considered – the effect of clause 4.3.5 of the Agreement was disadvantageous to non-aggregated wage employees – they were better off under clauses 21.1 and 23.3 of the Award than under 4.3.5 of the Agreement – considered that undertaking accepted in relation to 4.3.6 of the Agreement did not satisfy the requirement prescribed by s.190(3)(a) and contravened s.323 – not satisfied that amended undertaking made employees better off under the Agreement – not satisfied there were other clauses of the Agreement that off-set the loss of overtime entitlements, or that other beneficial clauses result in non-aggregated wage employees being better off overall under the Agreement – not satisfied that overall assessment results in BOOT being satisfied – not rectified by amended undertaking – Full Bench decided there were appealable errors – Commission erred in approving the Agreement and did not properly exercise discretion – appeal upheld and decision at first instance quashed – Agreement not approved. Appeal by United Voice – Queensland Branch against decision of Gregory C of 9 April 2015 [[2015] FWCA 1559] Re: MSS Security P/L t/a MSS Security P/L
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