Proposed Changes to the BOOT Test †Free Samples for Students

Question: What Is Proposed Changes to the BOOT Test? Answer: Introduction Background information The work place relations tribunal of Australia was established as a commonwealth court dealing with arbitration and conciliation following the passage of common wealth conciliation act 1904. The institution has greatly evolved since then in relation with economic and social changes and substantial legislative (WFPR, 2012). Recently there was the passage of fair work act 2009 and the establishment of fair work Australia which has since been renamed the fair work commission by the 2012 fair work amendment act. Better OFF Overall Test (BOOT) BOOT is a test that is applied by fair work commission covering the employees covered by the propose enterprise agreement. This test is the basis for approving or rejecting proposed enterprise agreement, however, it is important to note that any enterprise agreement that is not a greenfields agreement passes the BOOT, if fair work act is satisfied that award at the time of test both for employers and employee would be better off if the agreement is applied to the employee than the relevant modern award applied to the employee (Waterhouse Colley, 2010). The test is usually based on the modern award that is compared with the proposed enterprise agreement. The BOOT is more relevant in that it tries to improve the employment conditions for the employee. In particular, the test advocates for employee to be better off in the new agreement compared to relevant modern award that is currently applied. The total remuneration that is salary or wages and benefits for to employee should be better off in the agreement than if the conditions remained the same. This means that the BOOT advocates for better remuneration of employees in Australia meaning that the new terms of agreement must be better than relevant modern award. The BOOT is further meant to apply to all employees covered by the proposed collective agreement however, depending on the class, grade or job group. Coles and HMs agreement failed to pass the BOOT The Fair Work Commission (FWC) used BOOT to reject the agreement that was proposed by the Swedish fashion enterprise called HM that was meant to cover 1200 employees of the firm. At the time of test, FWC found that the new agreement proposed by HM would penalize the casual laborers more than in others in the industry. In the new agreement, HM had proposed to cut public holidays, overtime and weekends penalty rates for higher pay when working between Monday and Friday. The FWC found out that proposed agreement would not provide a higher rate than that existing in the industry and thus the agreement did not pass the BOOT (Hannan, 2017). Cole further failed to meet BOOT standards and thus was rejected. Advantages and disadvantages of BOOT BOOT is meant to regulate the enterprise bargaining agreements in Australia to ensure that employees are better off in terms of remuneration and other benefits. BOOT is advantageous in that it examines the conditions in the agreement and access whether it would improve the condition of employee than the existing award. BOOT ensures that employees get better pay in new agreement than modern award therefore the new enterprise bargaining agreements must pass the BOOT. Other advantages of BOOT include ensuring transparency between employer and employee in the new agreement and offer protection to ether part during the normal life of the agreement (Hannan, 2017a). BOOT assures employees of better pay in the new agreement than existing modern award in the industry. The main disadvantage of BOOT is that it cost employers in terms of time and financial resources for the agreement to go through FWA of Australia and be approved. It creates complexity and time consuming since strict process mus t be followed for the agreement to pass the BOOT (ABC News, 2017). Changes to improve the boot The employers seem to be disadvantaged in that the new agreement must satisfy strict conditions that allows employee be better off than modern award. The competitive market demands is s though and employees are looking ways to cut the cost, one way could be to cut employment cost through reduction in salaries and remuneration. However, employees cannot do so therefore changes should be made to BOOT to allow flexibility in response to economic situation in the industry. Employers can be allowed to minimize employment cost during economic depression. It has been further argued that the BOOT pose risk for employment in weaken labor market as employers may fear increasing its workforce due to fear of increased cost due to high wages advocated by BOOT in any new agreement (Heron Charlesworth, 2012). Greenfield argument is that penalty rates be removed to increase job opportunities. The productivity argued that employers should be allowed to negotiate freely with individual employees rega rding flexibility arrangements rather than going for employee ballot. Many employees are urging replacement of BOOT with non-disadvantage test (The Conversation, 2015). Aim of the report The report aims at providing an insight on the relevance of the fair work commission, fair work act 2009 and the role they place in the working environment of Australian citizens. It also suggests the necessary changes that need to be made on the BOOT test to make it more effective. Scope of the report The report will cover the various roles of the fair work commission and act 2009 as well as outline some amendments that may be made on the BOOT test. Its a tribunal that deals with the relations at national workplaces. It operates as an independent body which has powers to perform different functions that relates to the net safety of wages that are minimal and conditions of employment, bargaining related to enterprise, industrial actions, and resolution of disputes, employment termination and any other work place issues. This commission started its operations in the year 2009. It then took over most of the functions of the Australian industrial relations commission as well as those of the Australian fair pay commission (Anderson, 2009). This commission operates in various portfolios such as agriculture and water resources, defense, communications and arts, attorney general, education and training, employment, environment and energy, foreign affairs and trade, health, immigration and border protection, treasury, social services and prime minister and cabinet (Forde and Raine, 2008). The common wealth parliament is also covered unde r this commission and it includes bodies such as cabinet, shadow ministers, senators, parliamentary committees, parliamentary budget office etc. Under this commission are the governor general and commander in chief as well as courts and judges. How the commission works The commissions work is carried out by members of the commission with support from the administrative staff. Their work starts off once a person lodges a case application with the commission (Patricia and Alison, 2012). These applications have to be done using the correct commission form and be lodged in relation with the rules of fair work commission 2013. After a case has been brought before them, the commission responds in different ways as listed below; The application can be referred to a staff conciliator to assist in resolving the disputes in an informal way (Campbell, 2008). Directions could be issued on how the application will be dealt with. The people involved in the application may be required to make an appearance before the commission. Submissions are then invited either in verbal or written form. Evidences are then taken, conferences conducted, hearings are held and decisions are then made. In all these steps fair hearings are provided i.e. al the involved parties should be given opportunities to present their cases and then the cases are dealt with no favors whatsoever and in line with the law (SSC, 2009). The commission is expected to be very fair, act quickly, and be as informal as possible while avoiding unnecessary technicalities, be transparent and very open as well as promote work place relations that are corporative and harmonious (Meg and Andrew, 2010). In carrying out its functions the commission is supposed to take into account issues like the parts and objectives of the act that relates to the power under which a certain function is being exercised. The equity, good conscience and all the merits of any matter should also be considered with much keenness there is also the need to respect and value all the diversity in the workplace through assisting one in preventing and eliminating cases or people based on race, gender or even physical and mental disability (ABS, 2008a). In order to determine facts by the commission and in most cases when the facts are not agreed upon, the commission starts by determining the question that is on the balance of many probabilities i.e. is it more likely than not. Not all applications are accepted and heard by the commission some cases are dismissed basing on issues like if the application was not made in accordance with the act, if its vexatious of has no any reasonable prospects of success. This commission is limited in its mandates and it cannot for instance offer any legal advice to parties however it can give the needed information as presented on their website (Davidson, 2009). The commission also does not engage in the investigations of claims neither does it act for a particular party against another. Fair Work Commission (Agreement) Agreements are often made between employers and employees concerning the conditions of employment. Information on the process of making agreements can be provided by the fair work commission. It also assesses and approves these agreements. Disputes that arise from the terms of agreement are also dealt by this commission. The process starts off by making an enterprise agreement. The commission is mandated with the role of providing information regarding the process of making such agreements (ACTU, 2012). It also assesses and approves agreements. This enterprise agreement is made between employers and employees using some representatives. In situations that employees are not yet there i.e. green fields agreements then the negotiations take place between the employer and the relevant employee unions. This agreement is tailored to meet the needs of some enterprises. The agreement entails rates of payment, conditions for employment such as working hours and meal breaks, consultation mechanisms, procedures for resolving disputes and any deductions from the employee wages upon authorization by an employee (Austen et al., 2008). These agreements could be single, multiple or Greenfield agreements. Bargaining disputes; in some situations the parties involved in making agreements may reach a point where they are not coming to a conclusion. This could be because of some issue that needs to be resolved. In such situations the assistance of the fair work commission is sought so as to help them reach agreement on the said issues and conclude on the agreement. A bargaining order is applied fro from the commission by a bargaining representative. Upon completion of bargaining exercise and agreement made, some steps have to be followed in ensuring the approval of the agreement by the commission (Andrew, 2008). First and foremost the terms of the agreement have to be explained. The effects of these agreements should also be explained to the employee by their employer. A notice is then sent out and a vote for approval scheduled. The voting should be done 21 days after the call. An agreement is therefore approved only after the voting has been successful. The agreement that is voted for should not entail any unlawful contents like a term that is discriminatory or objectionable. Upon agreement by both terms a bargaining representative is supposed to write to the commission seeking approval and this application is expected to reach the commission in a span of 14 days since the agreement was made (Glenda et al., 2008).This application s accompanied by an agreement signed copy and any other declarations therein. For any agreements to be approved by the commission some of the things that are to be taken into consideration include the pre approval steps, genuine agreement by the employee, it should pass the better off overall test and it should not have any terms that may exclude NES. The agreement should also not have any unlawful terms and it should specify its expiry dates. Termination of any agreements should also be made to the commission by the involved parties. The person covered by this agreement is supposed to write to the commission for the termination to be approved (Sylvia, 2007). This should be accompanied by all the declarations required by the rules of the commission. This application has to be made within 14 days of the agreed termination date or for as long as the commission allows. Forms 24 and 28 are used in the termination of any agreement. All the applications have to be accompanied by the declarations made there in. Changes to the BOOT The better off overall test has been in existence for many years and its usually based on the modern award which is relevant and is meant for any employees that are covered by the agreement of the enterprise (Sara, 2012). This test requires all the award covered employees and any prospective employee to be covered by the award should be better off when working under the agreement than they may be if any relevant modern award was applicable to them. However for the test to be effective some amendments may have to be considered. This test is applied during the test time e the time when the applicant seeking approval of the agreement is made (SE, 2009). The test should not be restricted to timing instead some allowance should be given as to when it has to be taken provided its done before the commission approves the agreement. This time limit has meant that incase of any flexibility agreement that may be made in the relevant modern award will not in any case be taken into account. This test is never applied as a line by line analysis. Instead its a test that is global only requiring one to consider the pros and cons to the employees covered by the award (Hilary, 2013). Therefore the test posses a question of as to whether the employees are better off in an overall manner incase the agreement was applied. To make the test be better off it should address the question of whether every employee is still better off under the agreement in comparison to their existing working arrangements. Currently the test is applicable in equal measures to all the employees which are covered by the proposed agreement. However the test should be varied depending on ones level of appointment at the work place like those with a high income threshold should have a different test. This will prevent the commission from assuming that every employee within some class is better off especially if the agreement passes the test (Marian and Sue, 2009). This test should not be the ultimate determiner as to whether the agreement should be passed or not other factors have to be considered as well such as how committed is the employee to the said agreement and as to whether the agreement fits well the demands of both the employer and employee. Fair Work act 2009 Legislation impact This act operates on the objective of providing a framework that is balanced for work place relationships that are both productive and cooperative and which aim at enhancing the prosperity of the national economics and the inclusion of all Australians in a social way. This objective is achieved in various ways viz; Provision of relation laws at the work place which are fair to Australians, much flexible to those doing businesses and aim at promoting growth in the productivity sector and economics (AIEP, 2012). This also considers the international labor obligations of the residents. Safety net of fair is guaranteed and should be relevant and easily enforceable in relation to the provided terms and conditions via the employment standards of the nation, or minimum wage orders of the nation and awards that are modern. Making sure that there is no undermining of the guaranteed safety net of fair as well as the relevant and enforceable minimum conditions and wages. This is achieved via making of employment agreements because such agreements are never part of work place relations systems that are fair enough (ABS, 2012). The objective is also achieved by offering assistance to employees in ensuring they strike a balance between their work and the responsibilities in their families through provision of working arrangements that are flexible. The act also ensures there is fairness at the work places and discrimination is prevented in all manners through the recognition of the employees right to freedom of associations well as the right to be well represented. This in the end protects the employees from the treatments that are unfair. They also provide procedures that are easily accessible and very effective in cases where disputes have to be resolved (Adows, 2007). The act also provides room for the emphasis of a collective bargaining that is of an enterprise level where they operate on obligations that are of good faith bargaining and rules that are clear which govern the industrial action. The act acknowledges some of the circumstances which are special especially to the small and medium sized businesses. The act therefore deals mostly with the relations at the work place by providing terms and conditions necessary for any employment, setting out responsibilities and rights of employees, employers and all the organizations that relate to a certain employment. The act also provides room for the compliance and its enforcement (Rhonda et al., 2012). It establishes the fair work commission and the office of the fair work ombudsman. Conclusion The fair work commission has played great roles in the citizens of Australia regarding employment and working environment. Its through this commission that any agreement made between an employer and employee is taken with the seriousness they deserve. In many cases employees enter into agreements that are not well understood only to be oppressed by the employer long after the terms of employment have been agreed upon. Its therefore through this body that anything within the agreement becomes binding and none of the parties feel oppressed. With this commission the necessary and proper means are usually followed in case of any agreement termination and this ensures that the termination of agreements is done following the right means where none of the involved parties rights are infringed. This is a commission that should remain in action for eternity in Australia. The fair work act also as seen in the discussion above works on one main objective of balancing the work place relationship s which are supposed to be both productive and supportive to the employees. This act together with the fair work commission and the ombudsman commission ensures good working conditions are reinforced by the employers and the agreements are adhered to fully. To ensure that the said commissions and the act meet their objectives its important for some amendments to be made on the BOOT test which often tests the approval of an agreement by the fair works commission. With the said amendments adopted the test will be more relevant to the said parties. Recommendations Some amendments need to be made on the BOOT test to render it more effective in the assessment of any agreement by the commission. The fair works commission needs more resource support in terms of labor and money to ensure its service delivery is good and to the satisfaction of the employer and employee All those in the working and business environment i.e. employers and employees need to adhere to the fair work act to ensure its effectiveness in protecting the rights of all the involved parties. References ABC News. (2017). Coles worker could bring down enterprise bargaining system if wage challenge is successful. 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