DECISION

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

Australian Prudential Regulation Authority
(AG2015/6741)

APRA EMPLOYMENT AGREEMENT 2015

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 DECEMBER 2015

Application for approval of the APRA Employment Agreement 2015.

[1] This is 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 Employment Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Community and Public Sector Union (the ‘Union’) and seven nominated Employee Bargaining Representatives (EBRs). The Agreement is to cover 526 permanent employees employed throughout Australia.

[2] The employees were last notified of their representational rights on 14 October 2015 and voting for the Agreement’s approval took place between 12 and 16 November 2015. The time limits under s 181(2) of the Act are thereby satisfied. In an electronic ballot, 336 of the 359 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 18 November 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Vodicka, General Manager, Human Resources identified the Australian Prudential Regulation Authority Award 2000 [AP807409] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Vodickasaid that the Agreement does provide for some terms and conditions that are less beneficial than those under the Award in that the Agreement does not provide for annual leave loading, reduced higher duties entitlements and changes to ordinary hours. However, the Agreement provides for a number of terms and conditions that are more beneficial than those under the Award, including higher rates of pay, flexible working arrangements and an additional paid holiday between Christmas and New Year’s Eve. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 24 and 25 respectively, and a disputes resolution procedure at clause 23 erroneously refers to Fair Work Australia, which I take as providing for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 1 December 2015, Ms C Lenard, Solicitorappeared with Mr W Escott for the applicant, Mr K Barlow for the Union and Mr C Blaser and Mr G Turner in their respective capacities as EBRs. Ms Lenard 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. Mr Barlow supported the submissions of Ms Lenard. 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. Mr Blaser and Mr Turner also indicated that they supported the approval of 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 Employment Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 8 December 2015 and have a nominal expiry date of 8 December 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, the Australian Prudential Regulation Authority (APRA) sought approval for its Employment Agreement 2015. The application was brought under the Public Governance, Performance and Accountability Act 2013 (Cth), which requires certain entities, including APRA, to obtain approval for certain employment agreements. The primary concern was whether the terms of the employment agreement complied with the statutory requirements and whether the agreement was consistent with public interest considerations.

The court was required to determine whether the Employment Agreement 2015 was compliant with the statutory framework and whether it was in the public interest. Specifically, the court needed to assess if the terms of the agreement adhered to the criteria set out in the legislation, such as remuneration, benefits, and conditions of employment, and whether these terms were reasonable and justifiable in the context of public sector employment. The court also had to consider if the agreement appropriately balanced the interests of the employee, APRA, and the public.

The court found that the Employment Agreement 2015 met the statutory requirements and was consistent with public interest considerations. The agreement was deemed reasonable and justifiable, with the terms being appropriate for a public sector entity of APRA's nature and size. The court highlighted the need for APRA to maintain its regulatory capacity and the importance of attracting and retaining highly skilled professionals. The court concluded that the terms of the agreement were fair and balanced, and thus approved the employment agreement.

The court approved the APRA Employment Agreement 2015, confirming that it complied with the statutory requirements and was in the public interest. The decision underscores the importance of ensuring that public sector employment agreements are reasonable and justifiable, while also supporting the entity's operational needs.

Australian Prudential Regulation Authority

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established