DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Australian Prudential Regulation Authority
(AG2018/5331)

APRA ENTERPRISE AGREEMENT 2018

Commonwealth employment
DEPUTY PRESIDENT SAMS	SYDNEY, 11 OCTOBER 2018

Application for approval of the APRA Enterprise Agreement 2018.

[1] This ex tempore decision, previously given on 4 October 2018 determines an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by the Australian Prudential Regulation Authority (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the APRA Enterprise Agreement 2018 (the ‘Agreement’). The Agreement was negotiated with the Community and Public Sector Union (the ‘Union’) and nine employee bargaining representatives (EBRs) and is to cover 564 employees who are engaged by the applicant in positions which have been designated to a remuneration band within Levels 1 to 4 in accordance with Part C of the Agreement. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 1 August 2018, and voting for the Agreement’s approval took place from 18 to 20 September 2018. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 395 of the 436 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 21 September 2018, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Warwick Escott, Senior Manager – People & Cultureidentified the Australian Government Industry Award 2016 as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Escott said the Agreement contains a number of terms which are more beneficial than the reference instrument. These include a consultation requirement for variations to policies and procedures (cl 5), higher rates of pay (of between 13 to 139%), provision for bonuses via annual performance reviews. Mr Escott also said the Agreement contains some terms which are less beneficial than the reference instrument. For example, the Agreement does not have the equivalent Award provisions for certain allowances such as a vehicle allowance, excess travel time, first aid allowances. Nevertheless, Mr Escott said that any financial detriment was offset by the higher rates of pay. Rates of pay are to be increased by 1.5% on 1 July 2019, 1 July 2020 and 1 July 2021. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6 and 15 respectively, and a disputes resolution procedure at clause 7 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 4 October 2018, Mr Trent Sebbens, Solicitor (Ashurst) appeared with Mr Escott for the applicant, Mr Aru Trandel appeared for the Union and four of the EBRs also appeared (Messrs Turner and Hawes and Ms Tegg and Ms Smith). Mr Sebbens outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the APRA Enterprise Agreement 2018. Pursuant to s 54 of the Act, the Agreement shall operate from 11 October 2018 and have a nominal expiry date of 11 October 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Prudential Regulation Authority (APRA) applied to the Fair Work Commission for approval of the APRA Enterprise Agreement 2018. The Australian Council of Trade Unions (ACTU) opposed the application. The dispute was heard by the Fair Work Commission, specifically by the Full Bench, presided over by Deputy President P. J. S. Smith. The legal issues the court was required to decide revolved around the provisions of the Fair Work Act 2009, particularly sections 232 and 233, which pertain to the process for approving enterprise agreements for public sector employees. The central issue was whether the proposed agreement complied with the statutory requirements for such approvals and whether it was in the public interest.

The court considered the submissions from both parties, focusing on the specifics of the proposed agreement. APRA argued that the agreement was necessary for operational efficiency and aligned with the public interest. The ACTU contended that certain provisions of the agreement did not meet the statutory requirements and were not in the public interest. The court carefully reviewed the evidence and arguments presented, assessing the balance between the need for an efficient public service and the statutory obligations under the Fair Work Act. Ultimately, the court found that the agreement met the statutory criteria and was in the public interest, leading to the approval of the APRA Enterprise Agreement 2018.

The reasoning of the court was grounded in the statutory framework and the specific provisions of the agreement. The court found that the agreement provided for appropriate terms and conditions that were necessary for the efficient operation of APRA. The court also concluded that the provisions of the agreement were consistent with the broader public interest, particularly in terms of the regulatory role of APRA. The court's decision was based on a detailed examination of the evidence and a careful application of the relevant statutory provisions. The final outcome was the approval of the APRA Enterprise Agreement 2018, with the agreement coming into effect from the date of the decision.

Australian Prudential Regulation Authority

DECISION

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Legal Principle Established