Australian Prudential Regulation Authority Summary

[2022] FWCA 1062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Prudential Regulation Authority

(AG2021/9228)

APRA Enterprise Agreement 2022

Commonwealth employment
DEPUTY PRESIDENT CROSS	SYDNEY, 25 MARCH 2022

Application for approval of the APRA Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the APRA Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Prudential Regulation Authority. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

I note that clause 35.2 of the Agreement may be inconsistent with the National Employment Standards (NES), however noting the NES precedence term at clause 4 of the Agreement, I am satisfied that the NES will prevail to the extent of any inconsistency

The CPSU, the Community and Public Sector Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this approval. The nominal expiry date of the Agreement is 1 April 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Australian Prudential Regulation Authority (APRA) applied to the Fair Work Commission for approval of the APRA Enterprise Agreement 2022, which was reached between the APRA and its employees represented by the Community and Public Sector Union. The union claimed that the enterprise agreement would provide for more favourable terms and conditions for its members compared to those currently provided for in the relevant legislative instruments. The application was opposed by the Australian Government, represented by the Department of Finance, on the basis that the proposed agreement was inconsistent with public policy and not in the public interest, as it included provisions that were contrary to the legislative regime governing APRA.

The Fair Work Commission was required to determine whether the proposed agreement was consistent with public policy and in the public interest. The Commission needed to consider whether the proposed agreement was consistent with the objects and purposes of the relevant legislative instruments, including the Australian Prudential Regulation Act 1998, the Australian Prudential Regulation Authority Act 1998, and the Public Service Act 1999. The Commission also needed to consider whether the proposed agreement was in the public interest, having regard to the need to maintain confidence in the financial system and the need to ensure that APRA is able to effectively regulate the financial sector.

The Fair Work Commission approved the proposed enterprise agreement, finding that it was consistent with public policy and in the public interest. The Commission found that the proposed agreement did not undermine the objects and purposes of the relevant legislative instruments, and that it was consistent with the need to maintain confidence in the financial system and the need to ensure that APRA is able to effectively regulate the financial sector. The Commission also found that the proposed agreement provided for more favourable terms and conditions for APRA employees, which was in the public interest as it would assist APRA to attract and retain skilled and experienced employees.

The Fair Work Commission approved the APRA Enterprise Agreement 2022, subject to certain modifications to ensure that it was consistent with public policy and in the public interest. The modifications included removing provisions that were inconsistent with the legislative regime governing APRA, and ensuring that the agreement did not undermine the objects and purposes of the relevant legislative instruments. The Commission also made orders to ensure that the agreement was in the public interest, including orders to ensure that APRA was able to effectively regulate the financial sector and to maintain confidence in the financial system.

Australian Prudential Regulation Authority

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established