This issue became particularly relevant as a trial decision on the approval of an agreement that applied to a major Australian retailer and its employees was overturned on appeal.  The agreement in question provided for regularly charged hourly rates higher than the applicable modern premium and were to compensate for lower penalties for evenings, weekends and public holidays. Full Bench found that the agreement did not pass the BOOT because the tariffs in the agreement penalized workers who worked primarily at times when, under the agreement, they received penalty interest less than the premium. The applicant provided information on how hourly rates were calculated, as well as an additional company, that any shortfalls between the revenues of the agreement and the revenues received under the modern bonus would be compensated in the next pay cycle. The agreement was approved with the companies. Tariffs that provide for the down payment of annual paid leave or personal/care leave (except under the terms of payment under Section 93 of the Fair Work Act 2009) cannot be included in enterprise agreements because they are contrary to the NES.  Therefore, if an agreement provided that a full-time or part-time employee could be assigned to one of the above service table scenarios at some point, the employee would then only have to pay the charged rate for the scenario while it was on the rollboard for the agreement to pass the BOOT. An agreement may have charged rates of pay that offset the benefits provided in the corresponding modern premium. In cases where an increase is included in the hourly rate of pay of the tariff rate, this rate must be increased to compensate for the removal of unpaid payments that would no longer apply.
A company that uses casual workers for regular and on-the-job work (so that casual work is simply used as a system of payment and alternative rights instead of describing the commitment on a truly random basis) could give casual workers a right to guaranteed schedules and schedules. For full-time permanent workers (i.e. non-accidental), the following tables contain a loaded package that transmits the BOOT to the specified turnover scenario, provided that there is no other provision in the agreement that is greater than the premium or less good to take into account: the Commission has found that, when structuring wage rates, in the manner proposed in the agreement, any assessment of these agreements depends in large part on when a worker is actually engaged. If the employee works the majority working hours on weekdays, he or she will most likely be better. However, if a significant proportion of the worker`s working time is on weekends or public holidays, this is less likely, as the occupancy rate was lower than the allocation rate for those hours. The Commission was convinced that, on the whole, workers felt better within the framework of the agreement than for the modern price.