It is not uncommon for the FWC to take a „pedantic“ approach when considering whether a proposed agreement passes through the BOOT. For this reason, employers should be fully aware of the requirements of modern awards to ensure that the agreement meets this threshold. The Opal decision stresses the importance of correctly interpreting modern rewards, negotiating wage scales and structuring enterprise agreements. The chart below clearly shows how a minor change in an organization`s interpretation of the Nurses Award can significantly change an employee`s hourly wage. At the end of the day, it can be very costly for your organization to be wrong. The BOOT applies to all matters relating to Australian enterprise agreements and essentially requires that employees be „better off“ under a proposed agreement than they would be if the corresponding bonus were applied (in this case the 2010 Nurses Award). The peculiarities of the BOOT are described in sections 186 (2) (d) and 193 of the Fair Work Act 2009 (Cth) (hereafter the FW Act). This can have a significant impact on how casual nurses are paid under the 2010 Nurses Award and on the ability of elderly caregivers to pass their EBA. For more information, check out our next blog on this topic. While the FWC had approved the Opal Aged Care 2017 Enterprise Agreement („agreement“) (subject to commitments), FWC Full Bench granted a complaint against the approval of the agreement by the Australian Nursing and Midwifery Federation („ANMF“). As a result, the original decision was overturned and referred to Commissioner McKinnon for redefinition. Full Bench also considered whether there were other reasons for overturning the original decision and found that Commissioner McKinnon had erred in concluding the contract and did not contain any illegal conditions.
Full Bench also expressed concern about Opal`s concerns during the application process and gave onlookers a clear picture of (strict!) The expectations of the FWC, when it comes to providing a formal enterprise agreement to approval. The decision recalls that, before the FWC approves an enterprise agreement, employers must ensure that: for example, the ANMF challenged the original decision, on the grounds that the terms of the agreement did not ensure Opal Aged Care employees and that the FWC`s subsequent decision to change coverage of the agreement was illegal. Indeed, the full-fledged bank has found that the FWC does not have the power to vary the coverage of an enterprise agreement during the authorisation phase, since the agreement must be actually agreed by the employees concerned before the application for authorisation. In addition, it was found that the agreement likely contained illegal conditions with respect to paid maternity leave. Thus, full Bench was concerned that the agreement had been approved when Opal had not provided a „signed copy“ of the agreement with its application. „… We believe that this is not so much the application of a presumption of interpretation as the ordinary and logical interpretation of section 10.4 [of the Nurses Award].