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[2002] AIRC 1515
procedural. Certification not granted immediately; Commission accepted some undertakings as alleviating concern (clauses 25 and 35) but required the employer to: (a) draft specific criteria/restrictions for...
Nowlan Enterprises sought certification of its workplace agreement. The Commission identified several clauses that might reduce employee entitlements compared with the relevant transport industry award or conflict with State leave statutes. The employer provided undertakings for some issues (renewable contracts; over-dimensional load allowance) which the Commission accepted. Other matters (payment of annual and long service leave in lieu; a facilitative 'individual flexibility' clause; casual loading used as a credit against overtime) required clearer, tighter drafting or undertakings. Commissioner Larkin gave the employer an opportunity to re-draft the clauses and provide written undertakings consistent with the statutory variation process; the agreement will be certified once those undertakings and amendments are received, following the approach in Re Faull's Shoes.
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3 cited instruments linked from this judgment.
Nowlan Enterprises Pty Ltd applied to the Australian Industrial Relations Commission for certification of the Nowlan Enterprise Certified Agreement 2002 under Division 2 of the Workplace Relations Act 1996. The application was heard on 4 November 2002 before Commissioner Larkin. The employer's statutory declaration stated the agreement would be read in conjunction with the Transport Industry (State) Consolidated Award (New South Wales), five full-time employees were covered, a notice of intent had been issued in September 2002, and the agreement had been made on 25 September 2002 ([1]–[2]).
At the hearing Commissioner Larkin raised concerns about a number of specific clauses: casual employment (clauses 10.4 and 12), annual leave cash-out (clause 17.4), renewable contracts (clause 25), over-dimensional loads allowance (clause 35), an individual's flexibility/facilitative provision (clause 38), and payout of long service leave (clause 40.1) ([3]). After the hearing the employer filed undertakings on 18 November 2002 addressing those clauses ([13], [18], [19], [21], [23]).
The Commissioner assessed the undertakings and the agreement against the statutory certification requirements, principally the no-disadvantage test in s.170LT read with s.170XA(2). He accepted some undertakings as alleviating concern (notably concerning clause 25 and clause 35), but found others inadequate in their present form, particularly the leave cash-out provisions (annual and long service leave) and the facilitative individual-flexibility provision. He gave the employer another opportunity to remedy those deficiencies, directing that certain amendments and written undertakings be provided before certification would be granted, and indicated he would adopt the approach taken in Re Faull's Shoes (requiring documentation of undertakings, communication to employees, and formal s.170MD variation) ([15], [17], [21], [24], [25]).
The decision turns on statutory certification requirements. Section 170LT imposes an obligation on the Commission to certify an agreement only if satisfied that the "requirements of this section are met," in particular that the agreement passes the no-disadvantage test ([10]). Section 170XA(2), quoted in the decision, defines the no-disadvantage comparison: an agreement disadvantages employees only if its approval or certification would result, on balance, in a reduction in overall terms and conditions of employment compared with relevant awards or relevant laws of the Commonwealth or State ([6]).
Commissioner Larkin analysed each challenged clause against this statutory standard and the applicable award or State law. Two statutory points were decisive:
State leave law constrains the Commission's assessment. The Annual Holidays Act 1944 (NSW) s.3(5) and the Long Service Leave Act 1955 (NSW) s.4(8) place limits on paying out annual or long service leave other than on termination. The Commissioner was concerned that clauses allowing payment in lieu could undermine employees' right to a real period of respite unless tightly controlled ([5], [15]–[17]).
The Commission may accept undertakings to cure defects pursuant to s.170LV, but undertakings must actually remove the disadvantage and be documented. The Commissioner relied on the accepted practice (exemplified in Re Faull's Shoes) that written undertakings must be provided, employees informed, and formal variation steps taken to give effect to undertakings (so the agreement is not left operating in a way that circumvents statutory safeguards) ([11], [25]).
For specific clauses:
Casual loading / overtime credit (clauses 10.4 and 12). The agreement provided a 25% casual loading (against award 15%), but the agreement treated the loading as "including compensation for payment for overtime and penalty rates." The Commissioner required clarity: the employer's undertaking limiting the use of the loading-difference as a credit against overtime and restricting casual employment to temporary needs, if properly framed, could allay the disadvantage concern. The essential point is that the aggregate effect must not reduce casuals' conditions overall ([4], [13], [14]).
Annual leave and long service leave cash-out (clauses 17 and 40). The employer's undertaking that payouts would be available only on written application for 'extenuating circumstances' did not, in Commissioner Larkin's view, ensure employees would obtain a genuine period of rest or otherwise protect their entitlements as required by State law and the no-disadvantage test. He asked for a provision that placed restrictions/specific criteria on payout, for example requiring a genuine financial need and a period of taken leave (cf. his earlier reasoning in Re Cobar Mining) ([15]–[17], [23], [24]).
Renewable contracts (clause 25). The employer undertook that any termination under clause 25 would be subject to ordinary termination and redundancy provisions; this removed the Commission's concern that clause 25 might be read as creating set-term employment that would disadvantage employees ([17], [18]).
Over-dimensional loads (clause 35). The employer undertook any agreed payment would be not less than the award. Commissioner accepted this alleviated concern ([18], [19]).
Facilitative individual flexibility (clause 38). The clause allowed individual departures from the agreement's terms without formally varying the agreement and expressly excluded wages and allowances from variation but permitted one-off departures and "mutually agreed" rates for long distance trips. Commissioner Larkin found the clause unclear and potentially able to subvert s.170MD's variation safeguards; he required the clause be replaced with wording that tied variations to s.170MD and for the employer to adopt the undertaking to submit facilitative provisions to AIRC approval ([20]–[22]).
Because the agreement as a whole was "very finely balanced" against award entitlements, he afforded the employer the opportunity to amend the agreement and provide formal undertakings. Once obtained and documented, certification would follow in the manner used in Re Faull's Shoes ([24], [25]).
Before this decision, the governing legal framework was the Workplace Relations Act's certification schema, including the no-disadvantage test in s.170LT read with s.170XA, the Commission's power to accept undertakings in s.170LV, and the statutory variation mechanics in s.170MD. The Commission's practice of accepting undertakings and conditioning certification on their receipt had been established in earlier decisions, including Re Faull's Shoes, which Commissioner Larkin expressly followed ([11], [25]).
This decision applies those statutory provisions in a fact-specific manner. It emphasises two points of continuing effect:
Undertakings can cure certification defects, but they must be concrete, documented, and designed so employees are not left with diminished rights. The Commission will expect undertakings to be implemented by formal variation under s.170MD where necessary (see Commissioner Larkin following Re Faull's Shoes at [25]).
Clauses that attempt to permit payment in lieu of leave or permit individual departures from agreement terms must be drafted so they do not conflict with State leave statutes or permit circumvention of the collective variation safeguards. The decision reinforces that such clauses require clear, objective criteria protecting employee respite and statutory entitlements ([5], [15]–[17], [20]–[22]).
Thus, after the decision, practitioners should expect the Commission to insist on precise drafting and documented undertakings that can be formally recorded and implemented in a certified agreement, particularly on leave cash-outs and individual flexibility clauses.
Paragraph [6] (statutory no-disadvantage test): The Commissioner quotes s.170XA(2): the Commission must be satisfied that certification will not, overall, reduce employees' terms and conditions compared to the award or relevant laws. Plain-English: certification is forbidden if, looked at in total, the agreement would make employees worse off than their award or legal entitlements.
Paragraph [10] (s.170LT compulsory test): The agreement must pass the no-disadvantage test and the Commission must be satisfied of that. Plain-English: certification is only allowed when the agreement meets the statutory safety-check; the Commission cannot certify otherwise.
Paragraphs [13]–[14] (casual loading undertaking): Employer said a higher casual loading (25%) exists but wants to cap the use of the loading-difference as a credit against overtime/penalty pay and promised limited use of casuals. Plain-English: employer pledges not to turn casual loading into a way of avoiding overtime/penalty payments and not to make the workforce mostly casuals, but the Commission needs clear limits to trust that.
Paragraphs [15]–[17] (annual leave payout concerns): Commissioner cites Re Cobar Mining and says payout-on-application limited to 'extenuating circumstances' is not enough without showing employees still get meaningful breaks; the Commission needs criteria so employees are not deprived of rest. Plain-English: the Commission will not accept vague promises to let employees cash out leave; it needs rules ensuring people still take time off, unless the employer proves special industry conditions and sets safe limits.
Paragraph [21]–[22] (facilitative provisions): Employer undertook facilitative arrangements would be subject to AIRC approval under s.170MD, but Commissioner said the clause as drafted would allow one-off departures and 'mutually agreed' rates without formal variation; he required the clause be re-drafted to require s.170MD compliance. Plain-English: employers cannot use 'flexibility' clauses to bypass the formal majority-approval process; any real variation must go through the Commission-approved s.170MD path.
Practitioners should look to this decision when a proposed certified agreement includes:
Provisions allowing payment in lieu of annual or long service leave, especially where payout is available during employment rather than only on termination, and where safeguards are vague or absent; the Commission will require specific, restrictive criteria that preserve employees' entitlement to rest ([5], [15]–[17], [23]).
Clauses that repurpose a higher casual loading as a credit against overtime and penalty rates or that permit unrestricted casual engagement across spreads of hours, without clear limits; the Commission will scrutinise whether casuals are being disadvantaged overall and may require undertakings limiting such practices ([4], [13], [14]).
'Individual flexibility' or 'facilitative' clauses that purport to allow departures from agreement terms without reference to the statutory variation procedure; the Commission will demand either the clause be redrafted to require s.170MD-compliant variation or that facilitative arrangements be the subject of AIRC approval ([20]–[22]).
Provisions that substitute 'as agreed' payments for award allowances without specifying rates or guarantees that the award rate will apply; the Commission will insist on a minimum guarantee or adoption of the award rate ([8], [18], [19]).
In short, any clause that could reduce statutory or award entitlements, particularly by providing broad discretion to employers or informal 'mutual agreements,' will prompt close examination and likely require express undertakings and formalised variation steps.
This decision is an administrative Commission decision rather than a court judgment. It follows, and expressly applies, Commission practice in prior decisions, in particular Re Faull's Shoes, concerning the use of written undertakings and the need to document undertakings and formally vary agreements under s.170MD before certification ([25]). Commissioner Larkin also referenced Re Cobar Mining for the proposition that the no-disadvantage test is applied on a case-by-case basis and that industry-specific operations may be relevant to assessing whether a paid-out leave clause is acceptable ([15]). The decision therefore reinforces existing Commission practice rather than establishing a new doctrinal departure.
Practitioners should expect subsequent Commission panels to continue to require clear undertakings, objective criteria for leave cash-outs, the formalisation of changes via s.170MD where necessary, and guaranteed minimums for allowances. The decision is best read as part of a line of Commission authority insisting on precision and protection of employee entitlements before certification.
What precise form of criteria for cashing out annual or long service leave will satisfy the Commission's concern that employees receive a 'reasonable period of physical and mental respite'? Commissioner Larkin gave examples (genuine financial need; requirement to take a proportion of leave) but did not prescribe a single acceptable formula ([17]). Future decisions will have to identify acceptable drafting and evidentiary standards.
How will the Commission assess industry-specific evidence that might justify broader leave cash-out arrangements? Commissioner noted that where industry practice or regional considerations (as in Re Cobar Mining) make a different approach reasonable, that material must be before the Commission. The threshold and content of such evidence remain context-dependent ([15], [16]).
To what extent can an employer legitimately use a higher casual loading as a 'global' compensation that includes penalty and overtime entitlements? The employer's undertaking demonstrating restrictive and limited use was accepted in principle; however, how concrete restrictions must be, and whether a loading-credit mechanism can be reliably designed not to reduce overall casual entitlements, remains a drafting challenge ([13], [14]).
How strictly will the Commission require facilitative provisions to reference s.170MD procedures? Commissioner required replacement of the clause rather than mere undertaking. There will be questions about transitional measures and how informal, one-off arrangements are to be handled without frustrating flexibility needs of employers but still protecting collective safeguards ([21], [22]).
These open questions point to the continuing need for careful drafting, robust empirical evidence where industry variance is relied upon, and clear, documented undertakings that can be made the subject of formal variation under the Act.
s.170LK certification of agreement
Application for certification of Division 2 agreement with employees.
[1] On 4 November 2002 I heard an application under s.170LK of the Workplace Relations Act 1996 (the Act) for certification of an agreement lodged by Workplace Relations Pty Ltd on behalf of Nowlan Enterprises Pty Ltd. The agreement was the Nowlan Enterprises Certified Agreement 2002. Mr. Adams appeared as agent for Nowlan Enterprises. A statutory declaration of Mr. Nowlan, Director, was filed with the application. The statutory declaration provided the following information:
[2] The award for the purpose of the no-disadvantage test was stated to be the Transport Industry (State) Consolidated Award, an award of the Industrial Relations Commission of New South Wales. The agreement is read and interpreted in conjunction with the award. The rates of pay in the agreement reflect award rates of pay, which by virtue of clause 5 of the agreement, will be increased in accordance with the level of award increases. The dispute settling provisions are found at appendix B to the agreement. The employer is Nowlan Enterprises Pty Ltd trading as Danny Nowlan Transport. Five full-time employees are said to be covered by the agreement. A notice of intent to make the agreement was forwarded to employees on 7 and 9 September 2002. The agreement was made on 25 September 2002. The agreement applies to the whole of the single business and has an expiry date of three years from certification. The agreement is based on original Australian Workplace Agreements.
[3] During the hearing of the application I raised with Mr. Adams a number of concerns I held in relation to specific provisions contained in the agreement. Those agreement provisions were:
38 Individual's Flexibility - Facilitative Provisions
40.1 Long service leave - paid out in full or part
[4] The agreement provides for 38 hours per week ordinary time, as does the award. Clause 10.4 provides that a casual employee may be engaged without restriction "as to the spread of hours, days worked, without any restriction or limitation on numbers, proportion of the workforce or to minimum or maximum hours worked." Ordinary hours for casuals may be worked Monday to Sunday, inclusive, as per clause 12 of the agreement. For this flexibility casuals receive a loading of 25% compared to 15% as provided by the award. The 25% loading is in compensation for leave and other entitlements relevant to permanent employment and includes compensation for the payment for overtime and penalty rates.
[5] Clauses 17, Annual Leave, and clause 40, Long Service Leave provide for the payment of leave in lieu of taking leave. These provisions are contrary to State Legislation. Section 3(5) of the Annual Holidays Act 1944 (New South Wales) prohibits payment of annual leave except upon termination. Section 4(8) of the Long Service Leave Act 1955 provides for similar restrictions.
"Subject to sections 170XB, 170XC and 170XD, an agreement disadvantages employees in relation to their terms and conditions of employment only if its approval or certification would result, on balance, in a reduction in the overall terms and conditions of employment of those employees under:
(b) any law of the Commonwealth, or of a State or Territory, that the Employment Advocate or the Commission (as the case may be) considers relevant."
[7] The agreement is said to apply to the categories of full-time, part-time and casual employment. However, clause 25 appears to apply to fixed term employment associated with specific contracts and their renewal.
[8] Clause 35, Over-Dimensional loads, provides that for loads of 18 metres long and over the allowance payment is "as agreed per load (special allowance)." The award provides for payment of an allowance of approximately $1.00 per hour to $9.00 per day depending upon the specific circumstances.
[9] Clause 38 represents a facilitative provision whereby, by individual agreement, the agreement provisions, with the exception of wages and allowances, may be varied or "departed from" without complying with the requirements of s.170MD.
[10] Section 170LT, for present purposes, provides:
"(1) If an application is made to the Commission in accordance with Division 2 or 3 to certify an agreement, the Commission must certify the agreement if, and must not certify the agreement unless, it is satisfied that the requirements of this section are met.
(2) The agreement must pass the no-disadvantage test (see Part VIE).
(a) the only reason why the Commission must not certify an agreement is that the agreement does not pass the no-disadvantage test; and
(b) the Commission is satisfied that certifying the agreement is not contrary to the public interest;
the agreement is taken to pass the no-disadvantage test."
[11] Section 170LV, for present purposes, provides:
"(1) If, under section 170LT or 170LU, the Commission has grounds to refuse to certify an agreement:
(a) the Commission may accept an undertaking from one or more of the persons who made the agreement in relation to the operation of the agreement and, if satisfied that the undertaking meets the Commission's concerns, certify the agreement; and
(b) in any case, before refusing to certify the agreement, the Commission must give the persons who made the agreement an opportunity to take any action that may be necessary to make the agreement certifiable.
(2) If an undertaking is not complied with, the Commission, after giving the persons who made the agreement an opportunity to be heard, may:
(a) order the one or more persons who gave the undertaking to comply with it; or
[12] I provided Mr. Adams with an opportunity to file further submissions in relation to the above provisions and/or undertakings in accordance with s.170LV.
[13] On 18 November 2002 Mr. Adams filed undertakings in relation to the above clauses of the agreement. Those undertakings are outlined as follows. I will comment on each in turn.
Clause 10 and clause 12 Contract of Employment - Casual employees.
"CONCERN: Casual employees could be disadvantaged
The working of normally defined overtime hours at the casual rate shall be restricted to utilising the dollar credit difference between the 15% and 25% loading as a credit against overtime loadings/margins.
Example (current wage rates - Grade 7 @ plus 15% = $17.70 v plus 25% = $19.24 = $1.54/hr Credit difference of say 100 hrs of ordinary time already worked @ $1.54 = $154.00
Employees could work the following normally defined overtime hours:
Time and one-half hours - $154.00 div $17. 70 plus 50% = 5.8 hrs
Double time hours -$154.00 div $17. 70 plus 100% = 4.35 hrs
Firstly, the Company has no intention to move to a largely or even substantial casual workforce.
Secondly, Casuals would only be employed to cater for temporary overload or emergency situations, temporary permanent Employee replacement or for non-permanent work."
[14] If I have understood the undertaking correctly, the situation in relation to a casual employee would be that the performance of duties on overtime or hours/days, which carry a margin (penalty), will be restricted to the available credit difference between a 15% loading (as per the award) and the 25% loading (as per the agreement).
"CONCERN: Permanent employees could be disadvantaged?
Payout will only be available on the written application of an Employee to meet extenuating circumstances."
[15] Mr. Adams did not file submissions in relation to this particular provision. In Re. Cobar Mining Services Certified Agreement 2002[1] I had reason to consider a provision, which provided for an employee election to payment in lieu of taking annual leave. In that decision I stated:
"Having considered the submission filed by Mr. Laing in relation to the above issue any concerns I held, in relation to a disadvantage to employees in relation to an entitlement to take annual leave, has been satisfied. In my opinion, the following extract from the submission is relevant to my consideration of the issue.
_`_The employees of the Company will generally be involved in rosters which work 4 days on/4 days off - the typical roster being applied by mining companies and their contractors in the Cobar region.
The tendency in the Cobar region under this rostering arrangement is for employees to take one or two days annual leave in conjunction with their rostered days off - and annual leave entitlements tend to accrue. The need for `normal' bouts of annual leave is not required to enable employees to have regular leisure breaks.
An option for employees who are seeking their accrued annual leave entitlement is to simply resign and then seek re-employment.
The Company is obligated to pay out the accrued annual leave on termination and with a general shortage of skilled personnel would not hesitate to re-employ.
This provides the same `end result' financially as Clause 17(e) but is an administrative impost on the Company and penalises the employee with respect to long service leave and redundancy benefits_.'_ [Submissions of 2 September 2002 @ point 5(d) and (e)]
The above submission highlights the relevance of the nature of the industry and the area of operation of the agreement in assessing particular provisions of an agreement in accordance with the requirements of s.170LT. It further highlights, in my view, the need to apply the no-disadvantage test on a case by case approach in relation to the particular agreement before the Commission for certification. Another relevant consideration is that the particular provision of the agreement does not provide for the payment of all annual leave but only that portion that represents accrued hours in excess of 40 hours at the initiative of the employee."[2]
[16] The Nowlan business may be subject to similar circumstances to that of the Cobar Mining situation or other considerations relevant to the Nowlan business. However, that material is not before me to enable a valid consideration of this agreement provision and whether or not it disadvantages employees in relation to their terms and conditions of employment.
[17] If the provision provided for a situation whereby employees were required to establish a genuine financial need and required to take a proportion of their leave entitlement, with the remainder paid out, this may provide for "a reasonable period of physical and metal respite from work."[3] The above undertaking does not satisfy that criteria in its current terms.
"CONCERN: Could be interpreted to mean set-period employment and not Client Contract Renewals
Any termination under this clause shall be subject to normal termination arrangements under Agreement Clauses 24 - Termination of Employment and 36 - Retrenchment/Redundancy and Award Clauses 31 and 32 respectively"
[18] I am satisfied that the above undertaking has alleviated my concern in relation to clause 25.
Any agreed payment for over-dimensional loads shall be not less than the Award.
[19] I am satisfied that the above undertaking has alleviated my concern in relation to the payment of this type of allowance.
Clause 38 Individual's Flexibility - Facilitative Provisions
"38.1 A facilitative provision is a provision that allows an Agreement matter or provision to be varied or departed from by agreement for either a set period or on an ongoing basis between the Employer and an individual Employee. A formal facilitative provision is not necessary for one-off matters or for Long Distance Trip Rates mutually agreed.
38.2 Where an individual Employee wishes to vary or depart from this Agreement to meet the needs of that Employee and/or to provide flexibility for the Company or workplace for a set period or an ongoing basis, this may be achieved by means of a Facilitative Provision.
38.3 Facilitative provisions shall not be applied to Wages and Allowances clauses.
38.4 For the purpose of developing a facilitative provision to meet the particular needs of an Employee, that Employee may nominate another person to assist or represent them.
38.5 To comply with this clause, any and all facilitative provisions shall be confirmed and committed to writing in accordance with Appendix C."
[21] Mr. Adams' submission/undertaking stated:
"CONCERN: Could result in an unapproved Agreement
Facilitative provisions complying with this clause and Attachment C shall be subject to AIRC approval in accordance with WRA Div 7, s. 170MD."
[22] While the employer has provided an undertaking that any arrangement entered into will be subject to an application under s.170MD it is difficult to see how the provision would work effectively. Firstly, the provision allows for variation of the agreement to suit individual needs. Section 170MD requires that a valid majority of the employees genuinely approve the variation. Secondly, the provision states, "formal facilitative provision is not necessary for one-off matters or for Long Distance Trip Rates mutually agreed." This appears to suggest that arrangements may be entered into without the requirement for formal variation in accordance with the Act. Further, the award provides for rates to apply to Long Distance at clause 14 and Table 10. What are the mutually agreed rates envisaged by the agreement? How am I to apply the no-disadvantage test, when considering the agreement as a whole, without a specific rate.
"CONCERN: Permanent employees could be disadvantaged?
Payout will only be available on the written application of an Employee to meet extenuating circumstances"
[23] My comments in relation to clause 17, Annual Leave, are relevant to this particular provision of the agreement.
[24] The material provided on 18 November 2002 has satisfied some of the questions I raised with Mr. Adams during the hearing of the application for certification. However, that material has not addressed all the issues raised, which I advised Mr. Adams were relevant to my consideration of the legislative requirements of the no-disadvantage test. The agreement as a whole is very finely balanced when considering the entitlements to employees under the relevant award. However, clause 5 of the agreement, as stated earlier, provides that the agreement is to be read in conjunction with the relevant award.
[25] I have decided that I will afford the parties another opportunity to consider the issues raised in this decision. In that regard if the employer is prepared to:
· construct a provision which places restrictions/specific criteria for the payment of leave in lieu of the taking of leave, as discussed earlier in this decision,[4]
· replace the facilitative provisions clause in the agreement with a provision that provides for the variation of the agreement during its life in accordance with s.170MD,
· replace the mutually agreed allowance rates with an actual rate or a statement that the award allowance rate will apply,
then I am prepared to follow the course of action adopted by Senior Deputy President Watson in Re Faull's Shoes Pty Limited Certified Agreement[5], where his Honour stated:
"Further, I require an undertaking that the employer will document the undertakings and the changed terms and conditions resulting from them and provide a copy of that document to each employee whose terms and conditions are governed by the Certified Agreement. Finally, I require an undertaking that the employer will take steps to formally vary the Certified Agreement, according to s.170MD of the Act to formally give effect to the undertakings given.
Upon receipt of the written undertakings I will certify the Agreement. The Agreement will be certified from the date upon which those written undertakings are provided. I direct the employer or its representative to provide those written undertakings to the Commission within a period of seven days from today's date. The Agreement, as I have already indicated, will be certified subject to those written undertakings."
Printed by authority of the Commonwealth Government Printer
3 See Print T3829, 30 November 2000 (Giudice P, Polites SDP, Redmond C) @ [16]
Certification not granted immediately; Commission accepted some undertakings as alleviating concern (clauses 25 and 35) but required the employer to: (a) draft specific criteria/restrictions for payout of annual and long service leave to limit payouts to genuine extenuating circumstances and preserve respite, (b) replace the facilitative provisions clause with a clause requiring variation in accordance with s.170MD, and (c) specify allowance rates or adopt award rates for over-dimensional loads; Commission indicated it would follow the approach in Re Faull's Shoes—require written undertakings, documentation to employees and formal s.170MD variations—and would certify upon receipt of those undertakings (see [18], [19], [21], [24], [25]).