Fair Work Act 2009

s.227A - Application to reconsider whether an enterprise agreement passes the better off overall test

Application under s 227A - condition in s 227A(2) not met - application dismissed

• [1] Earlier this morning I dismissed an application made by Matthew Davies under s 227A of the Fair Work Act 2009 (Act). The application asked the Commission to reconsider whether the Coral Expeditions Ship Crew Enterprise Agreement 2023 (Agreement) passed the better off overall test (BOOT). Section 227A(1) provides that, if the condition in s 227A(2) is satisfied, an application may be made to the Commission for a reconsideration of whether an enterprise agreement passes the BOOT. Section 227(A)(2) states:

'(2) The condition in this subsection is satisfied if:

(a) before approving the agreement the FWC had regard, under subsection 193A(6), to patterns or kinds of work, or types of employment engaged in, or to be engaged in, by:

(i) the award covered employees for the agreement; and

(ii) if the agreement is a single - enterprise agreement that covers one or more employees to whom a supported bargaining agreement or a single interest employer agreement applies -- those employees; and

(b) at the test time or a later time, one or more employees covered by subsection (4) or (5) engaged in other patterns or kinds of work, or other types of employment, to which the FWC did not have regard under subsection 193A(6).'

• [2] The condition in s 227A(2) is plainly not satisfied in this case. The application does not identify any employees who are said to have engaged in patterns or kinds of work, or types of employment, to which the Deputy President did not have regard under s 193A(6).

• [3] Mr Davies misunderstands s 227A. He believes that the section allows the Commission to revisit the BOOT if someone alleges that it was not done properly the first time. This is wrong. Section 227A does not provide for a general review of the BOOT. It applies only when the condition in s 227A(2) is satisfied.

• [4] Mr Davies made various other submissions to the effect that the employer had not properly bargained for the Agreement and that the Commission should now make good faith bargaining orders. These submissions are misconceived. No such orders can be issued because the requirement of s 230(2) is not met.

• [5] The application was incompetent and was therefore dismissed.

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