Application for approval of the BOC Limited Lutana (Operations) Enterprise Agreement 2024

[1] BOC Limited (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the BOC Limited Lutana (Operations) Enterprise Agreement 2024 (the Agreement).

[2] The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the AMWU.

[3] The following provisions may be inconsistent with the National Employment Standards (NES):

• Clause 5.7(g), relating to deductions on termination, may permit the employer to withhold monies owing to an employee under the NES.

• Clause 7.3(e), relating to redundancy, to the extent that it may limit entitlements to redundancy under the NES.

[4] However, noting clause 1.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] I raised a concern regarding the application of casual rates of pay under the Agreement and the Better Off Overall Test (BOOT). To address my concern the Employer provided further detail regarding the application of the 5.5(b) of the Agreement. The Employer submitted:

"Where a casual employee works during periods that would ordinarily incur a penalty rate or shift loading, the employee's pay will be calculated by comparing the hourly rate specified in Appendix A, and the Award rate which would apply to that period of work plus an additional five cents.

For example, if a casual employee worked 4 hours of overtime, the following comparison would be undertaken:

Award overtime rate of pay (casual employee) - first 3 hours

Award overtime rate of pay (casual employee) - after 3 hours

Under clause 9.4, casual employees may only be engaged at Level 1 and only trained employees would be performing overtime. Therefore, the applicable Award rate is the C13 rate. As the Award rate + 5c is higher than the Appendix A Casual Rate, the employee would be entitled to 3 hours at the rate of $46.84 and one hour at the rate of $62.45."

[6] I accept these submissions, and I am satisfied that casual employees will be better off overall under the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 December 2025. The nominal expiry date of the Agreement is 31 March 2028.

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