• [31] The Applicant then went on to reject UWU's submission that its interpretation of the BOOT is misconceived. It submitted that the UWU position on the nature and application of the BOOT should be rejected and again proposed that UWU was not basing its assessment of the Agreement on any proper grounds other than an internal policy shift. The Applicant further submitted that in any case the application of the BOOT as contended for by UWU was overly narrow, and not consistent with the amendment to the Act which took effect in June 2023.

• [32] The Applicant submitted that UWU was incorrect to rely on the decision in Loaded Rates and proposed that as that decision pre-dated the June 2023 changes by some years, it was conceivable that the legislative reforms were designed to overcome decisions such as that in Loaded Rates by means of requiring a more global assessment. It submitted that this was exemplified by s.193A(6) which it contends requires the FWC to make an assessment of reasonably foreseeable patterns of work identified by bargaining agents. The Applicant reiterated its earlier submission that patterns of work should be given a wide interpretation.

• [33] The Applicant further submitted that its interpretation of the BOOT was more closely aligned to the interpretation intended by the legislative change, being a movement away from a narrow line-by-line analysis and to a more global analysis. It suggested that this was consistent with the intent of the new legislation, which was outlined by the Department of Employment and Workplace Relations (DEWR)[8] as being to require the BOOT to be applied as a global rather than line by line test. DEWR also noted that returning the BOOT to its original intent in such a way would make bargaining more attractive to all parties.

• [34] The Applicant also quotes the findings of a survey - which I note are at this stage draft findings as the report will not be issued until the end of March - conducted by the DEWR[9]. That report contained some criticisms of the FWC's application of the BOOT from organisations such as the Australian Industry Group who claimed the FWC was maintaining a line-by-line approach rather than a global assessment. It was the applicant's submission that such observations suggested that the FWC was not adopting a global approach as intended by the legislative changes and that UWU's interpretation of the BOOT was consistent with this failure to adopt a new approach.

• [35] The Applicant also responded to UWU's submission that some of the protections offered by the Agreement - such as preventing age discrimination - were in any case legislative requirements. It was the Applicant's view that while it did not seek to speculate about the legality or otherwise of the practice, it was nevertheless demonstrated by its data that the café industry favoured junior employees. However, its own data demonstrated that it did not show a similar level of use of junior employees to the rest of the industry. As such, it proposed that UWU's submission did not address the reality of the effect of employment under the Award versus employment under its own prevailing arrangements.

• [36] The Applicant then takes issue with UWU's submission that its "Twelve Pillars" should not be regarded as relevant for BOOT purposes. Briefly, the "Twelve Pillars" are a set of principles under which the Applicant says it operates its business. They include some of the matters discussed above such as non-discriminatory employment and rostering practices, meeting employees' rostering needs, a commitment not to replace workers with technology and opening at non-commercial times, but also other matters such as paying trainees and supported wages workers at full rates and commitments to diversity and inclusion.

• [37] The Applicant submits that these advantages should be considered by the FWC as part of a proper global analysis because taken as a whole they outweigh any minor reductions in wages that an employee might experience. Further, given that the Applicant submits that its wages to sales ratio of forty one percent is higher than the industry average of thirty one percent, the net effect of its current arrangements is that more money goes to employees than would otherwise be the case.

• [38] In further submissions the Applicant rejects UWU's notion that the witness evidence of Mr Oakey and Ms Blizard should be rejected in their entirety. I do not propose to traverse all of the arguments put here. It is sufficient for me to say that I have accepted the evidence of Mr Oakey and Ms Blizard and to the extent it is not hearsay and is relevant it will be considered.

• [39] The Applicant also addresses UWU's contention that it has misconstrued the BOOT by inviting the FWC to compare a scenario under the Agreement with a scenario under the Award which is a process not relevant to the BOOT. Once again the Applicant takes the view that UWU is narrowly construing the BOOT and ignoring the realities of the café industry which would in practice and of necessity involve significant change in the Applicant's business if the Agreement was not approved. As such, it says UWU is ignoring the reasonably foreseeable patterns of work that employees would face under the Award.

• [40] Finally, the Applicant addresses UWU's contention that the common view of the Applicant and the non-UWU bargaining representatives should not be given consideration by the FWC. The Applicant rejects this submission. It says that the FWC should, when looking to a common view, take into account the capricious actions of UWU during the bargaining process and thereafter and essentially exclude them from consideration of the common view. The FWC should instead look to the common view expressed by the Applicant and the non-UWU bargaining representatives.

• [41] Having considered all of the submissions, it appears to me that the disagreement between the parties over how the BOOT should be applied can be distilled into three separate issues. Firstly, is there a common view among the bargaining representatives and if so how should that be regarded by the FWC. Secondly, does the notion of foreseeable patterns or kinds of work or type of employment extend as far as the Applicant contends, in that the FWC should undertake an assessment of what would happen if the Agreement was not approved. Thirdly, what is a global - versus line by line - assessment and how should the FWC view the non-monetary benefits conferred by the Agreement when undertaking such a global BOOT assessment. I will consider each of these three issues below.

• [42] Before I do, it is important that I make comment on the Applicant's submissions regarding the motivations of UWU and the extent to which they should guide my thinking. As a bargaining representative, UWU is entitled to be heard on the approval of an agreement. Such entitlement is conferred by the Act. It is not conferred upon all persons but is limited to bargaining representatives and employees covered by the Agreement. Having been given that right, it is not particularly necessary for the FWC to try to determine the bargaining representative's motives for being heard. Further, to the extent that the Applicant alleges bad faith on the part of UWU, I note that the good faith bargaining principles are not applicable at this point of the process as the Agreement has been made.

• [43] Of more importance is for the FWC to determine if there is anything of substance in the objections that are being made by the bargaining representative. The Applicant claims in its submissions that but for UWU it would not find itself in this position and suggests that the FWC had no BOOT issues with the Agreement - see [30] above. This is not entirely correct. At the conference I conducted between the parties I raised my own concerns, which were based on my own assessment that the Agreement may not pass BOOT. As such, had UWU not pursued its BOOT concerns I would have pursued them. I further understand from Deputy President Saunders that he too had raised concerns that the Agreement did not pass BOOT.

• [44] I turn now to the three issues. In the first instance, I address the issue of the common view. The notion of a common view and the impact that it has on the FWC's consideration of the BOOT is set out in s.193A(4) of the Act, which provides as follows (with my emphasis):

"(4) [FWC must give primary consideration to common view]

The FWC must give primary consideration to a common view (if any) relating to whether the agreement passes the better off overall test expressed by all of the following:

(a) the bargaining representative or bargaining representatives of the employer or employers that are covered by the agreement;

(b) the bargaining representative or bargaining representatives of award covered employees for the agreement (other than a bargaining representative that is not an employee organisation);

(c) 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 - the bargaining representative or bargaining representatives of those employees (other than a bargaining representative that is not an employee organisation)."

• [45] In the present matter, sub-point (c) does not apply. As such, the FWC must give primary consideration to a common view expressed by the employer's bargaining representative and any employee organisation which is a bargaining agent. As set out in the emphasized section of (b) above, the views of bargaining representatives who are not employee organisations are not relevant to this section of the Act. Given this, I do not need to consider the Applicant's submissions with respect to how "common" ought to be interpreted. While the Applicant's view is that the Agreement passes BOOT, it is clear that UWU, being the only employee organisation which is a bargaining representative, does not share that view.

• [46] As such there is no common view of the BOOT that needs to be given primary consideration when I am applying the BOOT. I should note that I still need to give consideration to the views of all of the bargaining representatives as this is required by s.193A(3). However, such consideration does not rise to the level of primary consideration.

• [47] Secondly, I need to address the issue of, in essence, how far the notion of "reasonably foreseeable" should be taken. Put simply, it cannot extend as far as the Applicant contends, for the reasons that follow. The concept of reasonably foreseeable does have utility for the FWC when assessing agreements for approval. Two examples should suffice. In the first instance, there is the case of a bus company that contracts to provide buses for driving children to and from school. Under the terms of the Passenger Vehicle Transportation Award 2020 employees receive penalty rates for work on Saturdays and Sundays.

• [48] In assessing a proposed agreement, the FWC could receive - and may resolve to accept - a view expressed by the employer that it is not reasonably foreseeable that any employee will work on Saturday or Sundays given schools do not operate on those days. As such, if the agreement did not contain penalties for those days it would not present a practical BOOT issue and the FWC could approve the agreement. I note that the usual practice is for the FWC to note this work is not reasonably foreseeable in its decision and if at a later time the employer did require such work the FWC can re-visit the issue by virtue of s.227A of the Act.

• [49] By way of a second example, it is the case that some agreements will come before the FWC with apprentice provisions that exactly mirror the award. Previous decisions of the FWC have determined that an employee cannot be in an equivalent position to the award, they must instead be better off. Therefore, such a mirroring provision in an agreement does not pass BOOT. However, many of the employers have never engaged an apprentice and have no intention of ever doing so. Again, the employer can offer a view, which the FWC may accept, that it is not reasonably foreseeable that any apprentices will be engaged under the terms of the agreement and thus the BOOT concern is resolved.

• [50] It is also conceivable that one or other bargaining representatives direct the FWC's attention to an impending business change that may involve new patterns or times of work that are not contemplated by the agreement but if worked under the agreement's proposed provisions, would leave an employee worse off than under the award. In such circumstances the FWC may - if it accepts that the new patterns are reasonably foreseeable - require an undertaking to address this prospective issue.

• [51] In the Explanatory Memorandum to the Secure Jobs Better Pay Bill, the advantages of s.193A(6) in limiting the FWC's assessment to foreseeable scenarios rather than hypothetical ones is noted.[10] An obvious benefit of this provision is that it can avoid the FWC speculating about worst case scenarios. Such an example would be where in practice no work is done in times where the penalty structure in the agreement is inferior to the award, but the FWC does a BOOT comparison for those times anyway, resulting in the agreement failing BOOT.

• [52] I note in the present case, I indicated to the Applicant at conference that in performing pay comparisons I was mindful that the Agreement caps weekend work at thirty five percent of total hours worked. As a consequence, when I prepared pay comparisons, I did not use the example of an employee who only worked on weekends - where clearly the rates of pay are lower under the Agreement than under the Award - because such a roster was not allowed and thus not reasonably foreseeable.

• [53] This is a correct and permissible use of the "reasonably foreseeable" provisions and means that employers only need to deal with actual working scenarios rather than hypotheticals. However, the concept cannot be stretched to making assumptions about what business decisions the employer might take in circumstances where the Agreement was not approved. This notion bears some expansion.

• [54] Firstly, it is clear that the BOOT - for better or worse - is an exercise of comparing what employees would receive under the Agreement versus what they would receive under the Award. This analysis is of necessity conducted on the basis of like-for-like. If I work a thirty hour week over five days Wednesday to Sunday, what do I get under the Agreement and what would I get under the Award? The Applicant is contending for a proposition that the comparison should not be like-for-like. Instead, it says the FWC needs to make an assessment about what the employer would do if faced with refusal to approve - whether or not the outcome was that the award applied - and then factor this into its decision making. The Applicant does not seem to clarify if this should be done in all cases, or merely those where the result of not approving the agreement is that the award would apply and that the effect of applying the award can be reliably determined.

• [55] The concept of limiting BOOT assessment to reasonably foreseeable patterns of work first emerged in the Act as a result of the 2022 Secure Jobs Better Pay Bill. It is to be presumed therefore that if the concept of reasonably foreseeable was intended to extend beyond the concept of avoiding hypothetical working arrangements to the broader impacts of refusal to approve an agreement, then such intent would have emerged through the process of the Bill passing into law. I have examined the relevant Explanatory Memorandum dealing with s.193A(6) and can find no support for this proposition anywhere in that document. Nor can I find any commentary to that effect elsewhere. Further, I also note that I was not directed to - and neither can I find - any case law supporting this proposition.

• [56] In my view it is clear that the intention of the "reasonably foreseeable" provisions was to confine the FWC to consideration of actual scenarios that were either in place or could emerge during the life of the agreement. An example of this is neatly encapsulated in a decision of Deputy President Bell, where the Deputy President states:

"Correspondence was sent by my chambers to the employer raising potential concerns regarding the Agreement's silence on broken shifts and sleepovers provisions, which are provided for under the Award, and the potential impact of that silence on the better off overall test. The concern was in relation to cl 22.8 and cl 22.9 of the Award. The employer submitted, and I accept, the employer does not roster or provide for any broken shifts, subsequently, does not use sleepovers provisions and does not foresee that it would use them into the future. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, broken shifts and sleepovers are not reasonably foreseeable, as that is relevant for the better off overall test."[11]

• [57] It is also clear in my view that the framers of the legislation were mindful that in some cases, the FWC may have a scenario where a particular pattern of work was not reasonably foreseeable but emerged nonetheless. A mechanism to address this was inserted by way of s.227A of the Act, which allows a reconsideration of whether an agreement passes BOOT if a new pattern of work emerges. In my view this supports the notion of the reasonably foreseeable concept being limited to examining things that may occur during the life of the agreement. There is nothing I can find that suggests the notion of reasonably foreseeable extends beyond circumstances that may arise within the life of the agreement. The Applicant is contending for things that it claims are reasonably foreseeable if the Agreement is not approved and thus never comes into existence.

• [58] Given this, I am satisfied that the FWC is not required to make an examination of circumstances that may occur if the Agreement is not approved. Nevertheless, it is important to confine a BOOT assessment to scenarios which are reasonably foreseeable, and I note my comments at [53] above. I should add a further observation. The Applicant has provided what it says is evidence of what it would do if it were forced to apply the Award and claimed that therefore employees would not be better off overall. There are two problems with this.

• [59] The first is that the assessment for BOOT is to determine if the employees would be better off under the Agreement. It is not an assessment of whether they would be worse off under the Award - the Award of course being the absolute minimum safety net. Secondly, even if I had decided that I should examine the Applicant's postulated "award reality" scenario, I am not sure I would have accepted it.

• [60] In the first instance, the Applicant would not have been under any obligation to make good on the changes it foreshadowed with respect to modifications to its employees' working arrangements. Secondly, it is difficult to know if some of the changes - such as reduced trading hours - would have prevailed if customers had objected. Thirdly, if I was required to enter this speculative exercise, I might have had to consider the impact of the Applicant placing before the FWC in writing prima facie evidence that it was about to engage in a series of actions that appear to me to be clear breaches of the general protections provisions of the Act. Those breaches may well have been remedied in such a way the employees were in fact better off.

• [61] I now turn to the third of the issues identified at [41] above, being what is a global assessment versus a line-by-line assessment and how should the FWC view the non-monetary benefits claimed by the Applicant. In the first instance, I do not think that the issue of global versus line-by-line is particularly contentious in this case. In terms of the approach adopted by the FWC, the Secure Jobs Better Pay insertion of the notion of a global assessment was designed to remedy a perceived problem, which is best illustrated with a simple example.

• [62] Employee X is a full-time employee covered by the General Retail Industry Award. Under the Award, an employee at Employee X's grade receives a base rate of $974.80 per week and is entitled to a special clothing allowance of $6.25 per week. Under an agreement submitted for approval, Employee X would be entitled to a base rate of $1,000.00 per week and a special clothing allowance of $3.50 per week. Under a line-by-line analysis, the FWC could take the view that as the special clothing rate is lower in the agreement, the agreement does not pass BOOT. Under a global analysis, the FWC would say that the employee earns a total of $974.80 + $6.25 = $981.05 a week under the Award and $1,003.50 a week under the agreement. In the absence of any other monetary concerns and assuming that there were no less favourable conditions outweighing the financial benefit the agreement would pass BOOT.

• [63] In assessing the Agreement, I have taken a global approach, but I do so with the decision from Loaded Rates guiding my thinking. There is no reason to reject the finding of the Full Bench in that matter, notwithstanding that it was handed down some years prior to the Secure Jobs Better Pay amendments. It is clear that in the decision the Full Bench is adopting a global rather than line-by-line approach.[12] It notes the concept of non-monetary benefits and does not rule out including them in an overall analysis but warns that ascertaining their value can be a difficult task.[13] Particularly, it noted that with respect to such benefits it cannot be readily assumed that they have the same value for all employees.[14] Given all of this, the Full Bench sounded the warning found at [25] above that where there is a significant detriment in direct remuneration under a loaded rates arrangement, it is not likely that non-monetary benefits will adequately compensate the employee.

• [64] I should then address how I intend to approach the non-monetary benefits contained in the Agreement, which in essence mirror the Applicant's "Twelve Pillars" and are set out in cl.1.7. With respect to Pillars one and two, being age equality recruitment and age equality rostering, I accept that the submission of UWU is correct in that these are legislative protections and thus available under the Award or the Agreement. The fact that the Agreement chooses to list these legislative protections does not mean it provides a benefit over and above the Award. There can be no value in a BOOT sense attributed to an employer essentially saying it will not break the law, regardless of what it may assume other employers do.

• [65] Pillar three, being regular and reliable work, is - as some of the other non-monetary benefits are - tied to the employee adhering to the Balance of Work commitment to work across all days of the week. It is not clear if all employees do adhere to that commitment. However, in any case, the Award provides, at cl.10 (Part-time employees) a number of benefits including the need to set the weekly hours, and the days and times of work at commencement. Once set, these parameters can only be changed with the written consent of the employee. There are other benefits conferred in cl.10 such as the ability to request that the employer lock in any addition hours regularly worked - see cl.10.8 - with the employer only being able to refuse on reasonable business grounds.

• [66] The hours / days / times protection in the Award does not apply to full-time employees. However, the Applicant's Form F17B indicates that it did not employ any full-time employees at the time of the vote. As such, while Pillar three can be said to apply to all employees I am not satisfied that it represents a significant benefit over and above cl.10 of the Award for those employees. It may be that the Applicant takes the view that this Pillar in combination with Pillar nine provides a greater benefit than the Award. However, I do not agree, for reasons that are set out at [76]-[77] below.

• [67] Pillar four, being the payment of trainees at the full rate rather than at a training wage is clearly a superior benefit than the Award for any employee so engaged. However, it does not apply to any other employee. This issue of limited applicability can also be said to apply to Pillar 7 - paying employees with disabilities the full wage and Pillar 10 - commitment to diversity and inclusion. As such, these particular non-monetary benefits do not assist in ensuring employees who are not affected by their operation pass the BOOT.

• [68] Pillar five is a requirement to trade at least twelve hours per day to allow for a double shift trading pattern. I have taken the benefit to be in essence a guarantee of no trading changes that could impact an employee's hours. The Applicant in its material suggests that its current trading hours - being either 6am to 6pm or 6am to 9pm - would change to 6am to 2pm if it was forced to apply the Award. I have rejected above the notion of being required to compare postulated scenarios under the Award if the Agreement is not approved. However, I do need to determine if this provision confers a greater benefit than the Award.

• [69] Clearly there is no equivalent protection in the Award. Therefore, the Award would allow a change that could not occur under the Agreement. It would appear then that at first blush the Agreement provision is a benefit. However, this particular non-monetary benefit is one where the FWC encounters the difficulty of assessing which employees might benefit from this provision and in what circumstances. Ultimately, I am forced to proceed on assumptions. Firstly, I must assume that trading hours will change. If I do assume that the hours of a particular outlet will reduce by four hours such that work ceases at 2pm, what flows from this change?

• [70] Although I may be tempted to assume that all employees have their hours reduced to accommodate the new trading hours, such a reduction would not appear to be available under the Award without the employee's agreement by virtue of cl.10.5. I might then assume that no employees agree to the reduction in hours. In such circumstances, the Award would presumably confer a redundancy benefit on those employees who work hours that are no longer required. I might conclude on balance that maintaining their job by virtue of the Agreement provision is a greater benefit than the redundancy payment.

• [71] However, if it is the case that some employees are made redundant, is there any impact on the remaining employees? For example, would an employee who had always worked a 6 am to 12 noon roster have their hours changed at all? If not, then there is no difference between the Award and the Agreement in terms of impact. What about prospective employees? Do I assume that a change to trading hours is a one-off? If this is the case then the benefit evaporates at a point in time.

• [72] The preceding analysis demonstrates the difficulty in ascribing value to non-monetary benefits and assessing their impact on various groups of employees. Such difficulty is also encountered by Pillar six, being balanced work. Under this Pillar employees are required to be available for work over the entirety of the week. The Applicant then rosters employees in a balanced fashion over all days of the week and does not roster people to work only weekends. There is also a prohibition on working employees more than thirty five percent of their hours on weekends and public holidays. There is no equivalent provision in the Award, save for the provisions of cl.10 which require the employer and the employee to lock in the days of work upon commencement and then only change them if the employee agrees.

• [73] It is difficult to assess the benefit of this provision. It might be argued that an employee who works significant hours will know that they will not have to work more than - roughly - a third of their time on weekends. This may confer a benefit to that employee. There may be other employees who have a difficulty in committing to being available throughout the entire week given they are only part time. They may wish to only work on weekends. Some employees may want a roster that does not contain any weekend or public holiday work. No evidence is provided by the Applicant to say that each and every employee receives a benefit from this provision, nor is there any indication of what the benefit may be worth to each individual.

• [74] A similar concern arises with respect to Pillar eight - being the commitment to permanent employment. Given all employees who voted were already permanent, and there is no ability to unilaterally convert them to casual employment, this provision appears at best neutral with respect to current employees. Does it then confer a benefit on prospective employees? Again, it is hard to say how it will impact each person and to what extent. While there may be a tendency to favour permanent employment, it is clear - based on the usage of the Act's casual conversion provisions[15] - that not every employee takes that view. An employee who wishes to be casual would presumably not become an employee of the Applicant whereas they would possibly have such option if the Award applied - but the Award of course does not prevent an employer from only offering permanent jobs.

• [75] In summary, these Pillars, being five, six and eight are such that it is difficult to ascribe to them any significant or consistent value across all employees. As such, in the face of any significant financial detriment, they are unlikely to have any impact on a BOOT analysis.

• [76] I now turn to Pillar number nine (clause 1.7.9), which reads as follows:

"The Employer shall use best endeavours to ensure all Employees performing work to the required work standards and being willing to work the "Balanced Work" commitment (Pillar six) will have the opportunity to work as many hours of employment as they individually need to fulfil their total employment needs with the business."

• [77] There is no equivalent Award provision. However, this clause is couched in terms of being an aspiration rather than an entitlement. The Applicant is not required to provide each employee with the number of hours they need. It merely needs to use its best endeavours to do so, subject to certain caveats. As the clause does not confer an absolute entitlement, I am loathe to accord it any particular weight and I cannot see how it could be used to remedy any financial detriment.

• [78] Pillar eleven is a prohibition on replacing employees who are Order Takers or Dining Room Attendants with ordering kiosks or robots. There is no equivalent Award provision. However, I am once again faced with the inherent difficulties of such non-monetary benefits. In the first instance, it is clear that not all employees are protected from being replaced by technology and so this provision has no value for those such as, for example, kitchen hands. For those who do have the benefit it is questionable as to whether it has any practical value. This would depend on the probability that the Applicant would actually make the investment in technology, which would in turn be determined by its finances and whether it thought there was a net gain in automating. Given the uncertainty surrounding this provision, I am not prepared to give it any significant weight.

• [79] Pillar twelve provides that the Applicant will pass on to employees the percentage wage increase handed down by the FWC in its National Minimum Wage Order each year. The effect of mirroring the percentage by which the Award is increased is that the relativity between the Award and the Agreement is maintained - in this case with the Agreement paying a base rate at seven percent more than the Award base rate. This provision does not provide any benefit other than to maintain the relativity. If the relativity is such that the Agreement does not pass the BOOT at the outset, then this situation will clearly persist during the life of the Agreement. As such, there is no benefit to be derived from this provision if the Agreement does not pass the BOOT. I note that if it did pass the BOOT, it could be assumed that it would continue to pass the BOOT throughout its life by virtue of this provision. However, that is not relevant to the task for the FWC which is to ensure that the Agreement passes the BOOT at the test time.

• [80] In summary, I cannot see any meaningful above-Award benefits being conferred by Pillars one through twelve that would be capable of offsetting any significant financial detriment if such is found in the Agreement. In turn now to my analysis of the Agreement for the purposes of the BOOT.

• [81] In its Form F17B, the Applicant sets out its claims regarding which provisions of the Agreement provide a superior benefit to the benefit provided by the Award, those which provide a benefit the Award does not provide and those which provide a lesser benefit than provided by the Award. With respect to the provisions conferring a superior benefit, the Applicant has drawn upon its "Twelve Pillars" which I have analysed at [64]-[80] above. It has also identified the following superior benefits of the Agreement:

1. Tea breaks - one paid ten-minute tea break for every four consecutive hours worked subject to a maximum of two such breaks per day. The Award provides for two twenty-minute tea breaks where an employee works more than ten hours. As such, it is likely that in practice employees under the Agreement receive a ten-minute tea break during their shifts whereas the Award would not provide such a break.
2. Paid parental leave - the Agreement provides for six weeks of paid parental leave. The Award has no such provision.
3. Rates of pay - the Agreement pays seven percent higher than the Award on the base rate, including during leave such as personal leave.
4. Junior percentages. The Agreement has superior junior rates percentages than the Award, as follows:

• [82] With respect to benefits of the Agreement which have no Award equivalent, the Applicant again drew on its "Twelve Pillars". With respect to benefits in the Agreement which are inferior to those in the Award, the Applicant noted as follows:

1. Overtime rates on Saturday - the Award provides 75% for the first two hours and 100% thereafter. The Agreement provides 50% for the first two hours and then 100% thereafter.
2. Overtime rates on Sunday - the Award provides 100% for all hours. The Agreement provides 50% for the first two hours and then 100% thereafter.
3. Annual leave loading - the Award provides a 17.5% loading on annual leave. The Agreement contains no annual leave loading provision.
4. Casual rates - the Applicant notes that some of its casual rates are below the Award but contends that clause 1.7.8 of the Agreement "prohibits" the employment of casuals. I note that clause 1.7.8 does not prohibit but rather heavily constrains the use of casuals. However, I am prepared to proceed on the basis that given the level of constraint and given the Applicant had 100% permanency at the time of vote it is not reasonably foreseeable that it would employ any casuals during the life of the Agreement.
5. Penalty rates - the Award provides for 25% on Saturdays, 50% on Sundays, 225% on public holidays and fixed dollar amounts for early (pre 6am) and late (post 10pm) work. The Applicant does not operate before 6am or after 10pm and so I accept that those penalties are not relevant to the foreseeable patterns of work. However, the Agreement pays no penalties on Saturdays or Sundays and 25% on public holidays, which are times when the Applicant does trade.

• [83] The concerns I initially identified went to employees who work on weekends and public holidays. I am mindful that the Agreement at cl.1.7.6 caps weekend work at thirty five percent of an employee's time. If I take an example of an adult employee at the base level who works this percentage (or just slightly less) under various arrangements, the results are as follows:

• [84] In summary, under all four permutations, the employee is financially worse off. In addition, the employee is not paid annual leave loading. If I was to annualise the above figures, taking forty-eight weeks at the rates shown and four weeks of annual leave, the yearly scenario - other than for scenario four - would be as follows:

1. Scenario 1 - employee is $722.58 worse off under the Agreement
2. Scenario 2 - employee is $2,693.21 worse off under the Agreement
3. Scenario 3 - employee is $2,186.47 worse off under the Agreement.

If I then take Scenario 1 and assume that the employee works four of a possible eleven public holidays per year, then the employee is $1,203.73 worse off.

• [85] It is obviously the case that an employee who only worked between Monday and Friday would be better off under the Agreement. However, the Applicant trades on Saturdays, Sundays and public holidays and some employees must work these hours. As I noted at [52] above I did not perform a BOOT analysis on an employee who only worked in such times. Rather, I have applied the 65/35 formula required by the Agreement. Having done so, it is clear to me that employees working at that limit are substantially worse off. An employee working Sunday is almost nine percent worse off per week. This jumps to nineteen percent when a public holiday falls. As the Applicant indicated a reluctance to enter into undertakings, I have not engaged in a process of establishing exactly what is the maximum percentage of penalty time work that might provide sufficient protection - suffice to say it is at a level comfortably below thirty five percent which is the provision in the Agreement.

• [86] I then turn to the other benefits provided by the Agreement. The paid parental leave is a very positive benefit, but it is contingent - on the employee or their partner having a baby - and likely to be utilised no more than once or possibly twice by such an employee during the life of the Agreement. As such, I cannot ascribe to it any significant value for all employees. The paid tea break is clearly a benefit. However, it is not a benefit that provides the employee with extra money, but rather slightly reduced working hours. If there was no monetary difference at all between the Agreement and the Award a benefit such as this, perhaps coupled with some additional non-monetary benefits, might incline the FWC towards a finding that the employees are better off. That is not the case here.

• [87] I should make comment on two additional issues. Firstly, it may be a criticism from the Applicant that my calculations above are indicative of a line-by-line approach. I would not accept such criticism. An agreement that pays all employees comfortably more than the relevant award is one that will usually pass BOOT, absent any other obvious concerns. An agreement that pays only slightly above the award will attract attention to ensure that any non-monetary conditions inferior to the award do not tip the balance against the employees being better off.

• [88] However, when it is the case that there are employees in foreseeable circumstances who will be paid less than the award - again, being the absolute minimum safety net - then the agreement has a serious problem. The non-monetary benefits that it provides will need to be clearly able to be quantified and applied to all relevant employees and also not be contingent benefits that may only apply in some circumstances.

• [89] As such it is quite proper that in taking a global approach the FWC make an assessment of the monetary outcomes for employees and then, if these are inferior to the award, look to the other benefits provided to see if they can offset the monetary shortfall - noting again the view of the Full Bench in Loaded Rates that for them to do so is very difficult.

• [90] The second issue is the level of consideration I have given to the views of the bargaining representatives. As I noted above at [45] there was no common view as contemplated by the Act. I have read the Form 18A submitted by the non-UWU bargaining representatives and considered their views. I have considered the views of the Applicant. However, given my findings on how the BOOT should properly be applied, I cannot accept their view that the Agreement passes the BOOT when a rigorous analysis consistent with proper interpretation of the BOOT shows that the Agreement clearly does not pass.

• [91] I have set out my findings with respect to the numerous non-monetary benefits which the Applicant submits assist the Agreement to pass the BOOT. Having assessed the monetary outcomes which I regard as being foreseeable within the realities of the Applicant's seven-day week business and the restrictions provided by the Agreement, I am not satisfied that each employee will be better off. It is clearly the case that weekend and public holiday workers are worse off than they would be under the Award in monetary terms and such additional benefits in the Agreement that can be reasonably applied to my assessment simply cannot bridge that gap.

• [92] I have found that the Agreement does not pass BOOT. I am also mindful that the Applicant had previously indicated that it was not inclined to provide undertakings. Given that the Agreement does not pass the BOOT and that the BOOT concerns will not be remedied by undertakings, it is not my intention to delve into the issues of whether the Agreement was genuinely agreed. Having failed to pass the BOOT, the Agreement is incapable of approval. As a consequence, I order that the application for approval is dismissed.

[1] Applicant Submissions paragraph 2.3 page 8

[2] Applicant Submissions paragraph 5.5 pages 10-11

[4] Applicant Submissions paragraph 43.3 pages 67-68

[5] Applicant Submissions paragraph 5.9 page 12

[6] Re Loaded Rates Agreements [2018] FWCFB 3610 at [114]

[7] Applicant Reply Submissions paragraph 3.6(b) page 8

[8] See Regulatory Impact Statement provided with Secure Jobs Better Pay Bill Explanatory Memorandum

[9] Draft Report of the Secure Jobs, Better Pay Review issued by DEWR 31 January 2025

[10] See Explanatory Memorandum item 754 page 138

[11] Glengollan Village Inc t/a Gengollan Village [2023] FWC 2422 at [3]

[12] See Re Loaded Rates Agreements [2018] FWCFB 3610 at [112]

[15] For example see "Analysis of Changes in Casual Conversion in Australia" ABS July 2022

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