How is the BOOT test applied?

“In any event, employees who work patterns of work which differ from the assumptions in the typical rosters may be financially disadvantaged by the operation of the loaded rates depending on their particular working arrangements – in circumstances where s.193 of the Act provides that an enterprise agreement passes the better off overall test (only) if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee. The question of potential advantage and disadvantage necessarily depends on the variables of employees’ actual work patterns, rather than assumed, standardised models of work under the typical rosters; hence, it is necessary in relation to operations such as a 7-Eleven store to consider, as the Commissioner concluded, what the Agreement would allow (if not, for example, tempered by acceptable undertakings).

As to rostering different from that in the typical rosters, the appellant drew attention to s.193(1) of the Act as it concerns the test time, submitting that potential changes to employees’ working patterns is not a relevant consideration as the Agreement needs (only) to be considered in the context of the better off overall test at the test time based on the appellant’s typical rosters. When a comparison is made of the terms and conditions of employment, rather than the practices and working arrangements (such as typical rosters or what the appellant submitted was the intended operation of a particular clause or clauses), the loaded rates in the Agreement apparently do not satisfy the better off overall test. That is because employees who do not work hours according with the assumptions propositioned by the appellant in the typical rosters may be disadvantaged as at the test time. Each employee and prospective award covered employee would not, thereby, be better off overall under the Agreement than under the award(s) in circumstances where, for example, there are employees or a class of employees who do not work hours according with the standardised assumptions propositioned by the appellant in the typical rosters.

Similarly, the conditions of employment attaching to the part-time work provisions in the Agreement are plainly disadvantageous to employees as against the awards, given, for example, important award-specified protections – including matters such as agreement in writing concerning the regular pattern of work, the hours worked each day, which days of the week, and the actual start and finish times. Without provisions of the type contained in the awards, part-time employees under the Agreement could work, in effect, as casual employees but without a casual loading and effectively without payment of overtime except in the limited circumstances as set out in the Agreement as against the awards. On a consideration of the terms and conditions provided in the awards and the Agreement, it appears at the test time that part-time employees who may be employed under the Agreement are a class of employees who would be worse off under the Agreement – and the loaded rates may not adequately compensate.

See AJ Convenience Services Pty Ltd T/A 7-Eleven Rozelle & 7-Eleven Bexley v Shop, Distributive and Allied Employees’ Association (2016) FWCFB 2116 delivered 5 May 2016 per Hamilton DP, Lawrence DP and McKenna C