Application by Proper Preparation OHS & Training Specialists
Cited 1×
Applicant: Proper Preparation OHS & Training Specialists T/A Sitetrain
Ratio
An enterprise agreement variation cannot be approved where it would fail the better off overall test. The proposed variation in this case was deficient because it replaced a fixed wages table with an indeterminate variable rate and provided no penalty rates, loadings, or allowances, and undertakings could not remedy these shortcomings.
Outcome
Against applicant
dismissed
Authority signal
Cited 1×
Signal-weighted score: 0.0
Derived from how later decisions have treated this case. Dark green = leading authority,
green = positively treated, grey = neutral or sparse data,
amber = caution, red = treated negatively.
Key facts · 4
- Applicant operates in the mining industry, employing only casual employees
- Applied to vary an existing enterprise agreement to expand its scope to all casual employees
- Proposed variation sought to replace fixed wages table with variable hourly rates between $20.00 and $100.00 with no guidance on when or how the rate would be determined
- Agreement provides no penalty rates, shift loadings, allowances, or overtime rates
Factors
For
- Applicant sought to streamline the agreement to apply to all casual employees without role-based differentiation
Against
- The Agreement as varied would not pass the better off overall test (BOOT)
- Variable wage rate between $20.00 and $100.00 lacks any reference to when or how it would be determined
- No penalty rates, shift loadings, allowances, or overtime rates are provided under the agreement
- The proposed variation could not be remedied via undertakings
Legislation referenced
- Fair Work Act 2009 (Cth) s.210
- Fair Work Act 2009 (Cth) better off overall test (implicit reference)
Concept tags · 5
Principles · 2
articulates para 3
An enterprise agreement as varied must satisfy the better off overall test before approval can be granted.
articulates para 3
Undertakings cannot be used to remedy shortcomings in an enterprise agreement that fails the better off overall test.
Archived text (287 words)
Application by Proper Preparation OHS & Training Specialists [2016] FWC 3612 (2 June 2016)
[2016] FWC 3612
FAIR WORK COMMISSION
DECISION
Fair Work Act 2009
s.210
—Enterprise agreement
Proper Preparation OHS & Training Specialists T/A Sitetrain
(AG2016/3230)
Mining industry
SENIOR DEPUTY PRESIDENT HAMBERGER
SYDNEY, 2 JUNE 2016
Application for variation of the Proper Preparation OHS & Training Specialists Enterprise Agreement - agreement not varied - application
dismissed.
[1]
On 18 May 2016, Proper Preparation OHS & Training Specialists T/A Sitetrain applied under
s.210
of the
Fair Work Act 2009
(Cth) (the Act) for the Fair Work Commission to approve a variation of the
Proper Preparation OHS & Training Specialists Enterprise Agreement
1
(the Agreement).
[2]
The proposed variation seeks to, inter alia, expand the scope of the Agreement so as to apply to any and all casual employees of the
applicant, without further delineating between their duties or roles. It also seeks to replace the table of wages in cl 8.1 and implement
a variable hourly rate between $20.00 to $100.00, without reference as to when or how this rate is to be determined. All the employees
under the Agreement are employed as casuals. No penalty rates, shift loadings, allowances, overtime rates, etc. are payable under
the Agreement.
[3]
I cannot be satisfied that the Agreement as varied would pass the better off overall test. I do not consider that this shortcoming
could be remedied via undertakings.
[4]
Accordingly, I cannot approve the proposed variation. The application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances
:
H Palazzi
for Proper Preparation OHS & Training Specialists T/A Sitetrain.
Hearing details:
Sydney.
2016.
June 1.
1
AE896385.
Printed by authority of the Commonwealth Government Printer
<Price code A, AE896385 PR581159 >