Australian Securities And Investments Commission T/A Australian Securities And Investments Commission

[2024] FWCA 956

[2024] FWCA 956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Australian Securities And Investments Commission T/A Australian Securities And Investments Commission

(AG2024/533)

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION ENTERPRISE AGREEMENT 2024-2026

Commonwealth employment
COMMISSIONER PLATT	ADELAIDE, 18 MARCH 2024

Application for approval of the Australian Securities and Investments Commission Enterprise Agreement 2024-2026

1. An application has been made for approval of an enterprise agreement known as the Australian Securities and Investments Commission Enterprise Agreement 2024-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australian Securities and Investments Commission T/A Australian Securities And Investments Commission (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 7 March 2024.

1. On 8 March 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. In respect of the distribution of the Notice of Employee Representational Rights (NERR) it appears 3 employees were not provided with the NERR in a timely fashion.  Upon becoming aware of this issue, the Applicant sent the required documentation 6 calendar days later and 2 days prior to the commencement of the vote.  I am satisfied taking into consideration s.188(2) of the Act, that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. I also note correspondence received by Chambers (which was not copied to the Applicant) from an employee who asserted they were covered by the Agreement and contended that the Agreement was not genuinely agreed as a result of being coerced or induced to vote in favour of the proposed Agreement by the improvements offered. The correspondent was invited to raise a formal objection, but no response was received.  I am not persuaded that employees were misled or misinformed about the contents of the proposed Agreement, nor that the offering of improvements in working arrangements through the bargaining process has resulted in employees being coerced or intimidated into voting for the approval of the Agreement.

1. The Agreement contains a number of changes which when considered in isolation, are less advantageous than the Award. These include an increase in the weekly ordinary hours, the expansion of the spread of hours, and penalty rates. I note that the Agreement also confers benefits of universal application including 2 days paid leave between Christmas and New Year, Wellbeing Leave (which does not require any substantiation) and increased Superannuation Contributions.  I have not considered additional benefits which were conditional in their application and/or difficult to quantify in monetary terms.  I find that the universal improvements offset the disadvantage referred to. 

1. Two matters of concern remained, with respect to Part Time employees and Overtime and secondly Higher Duties.

1. The Applicant has submitted an undertaking in the required form dated 18 March 2024, a copy of which is attached to this Agreement. The undertaking deals with the following topics:

·  A Part-time minimum engagement has been inserted, consistent with the Australian Government Industry Award 2016.

·  The requirement to prescribe the agreed part time hours of working including the start and finish times so as to determine when overtime is payable has been inserted, consistent with the Australian Government Industry Award 2016.

·  Higher duties allowance will be paid to ASIC1 – ASIC4 employees after half a day where they occupy a role at a classification level higher than their substantive classification level consistent with the Australian Government Industry Award 2016.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives supported the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

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

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 26 October 2026.

COMMISSIONER

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