Bellarine Peninsula Community Branch Limited

[2013] FWCA 8367

[2013] FWCA 8367

FAIR WORK COMMISSION

DECISION

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

Bellarine Peninsula Community Branch Limited
(AG2013/9706)

BELLARINE PENINSULA COMMUNITY BRANCH LIMITED ENTERPRISE AGREEMENT 2013

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 25 OCTOBER 2013

Application for approval of the Bellarine Peninsula Community Branch Limited Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bellarine Peninsula Community Branch Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bellarine Peninsula Community Branch Limited Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (the ‘Union’) and three non-Union Employee Bargaining Representatives. The Agreement is to cover 14 employees who are engaged in clerical roles in the applicant’s community banking franchise, on the Bellarine Peninsula, Victoria. 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 24 July 2013, and voting for the Agreement’s approval took place on 23 September 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 14 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R Enders identified the Banking, Finance and Insurance Award 2010 [MA000019] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Endersaid the Agreement provides for a number of conditions that are in excess of, or are more beneficial than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for higher rates of pay, more generous severance entitlements, a number of allowances and a bonus paid when an employee’s employment ends which is referable to unused personal leave. Rates of pay are dependent upon the performance of the individual employee and that of the Company. However, historically, Bendigo and Adelaide Bank communicates with its franchised Community Banks when it increases salaries for its own employees. These increases are generally passed on, subject to the Board’s approval. The Agreement provides for the mandatory flexibility and consultation terms at clauses 24 and 23 respectively, and a disputes resolution procedure at clause 25 provides for mediation and arbitration by independent third parties.

[4] At a hearing of the application on 16 October 2013, Mr D Villani appeared for the applicant and Mr R Lowrey for the Union. Mr Villani 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 Lowrey indicated that while 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), the Union did have some reservations which it submitted should be the subject of undertakings by the applicant:

(a) The use of the abbreviation of FWA, rather than FWC to refer to the Commission;

(b) The discretion for the employer under clause 14.(d) to limit payment of annual leave loading for resigning employees, which the Union submitted contravened s 90(2) of the Act, requiring payment for accrued annual leave on resignation of employment to be made on the same basis as if this leave was actually worked;

(c) The consultation clause (clause 23) is less detailed than the Model Clause and the clause in the Modern Award; and

(d) The disputes resolution procedure under clause 25(a) excludes matters relating to suspension and/or termination of employment, yet no such exclusions are permitted by s 186(6)(a)(i) of the Act.

Both parties provide further short written submissions on these matters

[5] The task of the Commission in assessing the BOOT is not to engage in a line by line comparison between the terms of the Agreement and the corresponding terms of the Award; See: McDonald’s Australia Pty Ltd & Shop, Distributive and Allied Employees’ Association[2010] FWAFB 4602. The task is one of balancing the less beneficial terms with the more beneficial terms to establish that no employee would be worse off by being covered by the Agreement. In conducting this analysis, under this Agreement, I am satisfied that the terms of the Agreement the Union complains about are either:

● Protected by the National Employment Standards or the Act’s other provisions; or
● Not materially significant as to be outweighed by the terms of the Award.

On balance, I am prepared to accept that the BOOT has been met.

[6] 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. For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Accordingly, I approve a single enterprise agreement known as the Bellarine Peninsula Community Branch Limited Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 23 October 2013 and have a nominal expiry date of 22 October 2017.

DEPUTY PRESIDENT

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