Bupa Australia Pty Limited Summary

[2014] FWCA 1905

FAIR WORK COMMISSION

DECISION

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

Bupa Australia Pty Limited
(AG2014/3911)

BUPA AUSTRALIA ENTERPRISE AGREEMENT 2014

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 21 MARCH 2014

Application for approval of the Bupa Australia Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Bupa Australia Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Bupa Australia Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Finance Sector Union of Australia (FSU) (collectively, the ‘Unions’) and seven non-Union Employee Bargaining Representatives. The Agreement is to cover 1,900 employees, other than Senior Managers, who are engaged in the provision of health insurance and related services. 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 19 June 2013, and voting for the Agreement’s approval took place between 19 and 26 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot, 927 of the 1,027 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 March 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr C Cook, Lawyer, 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 Cooksaid that the Agreement does contain some terms and conditions that are less beneficial than the Modern Award, including a longer span of ordinary hours, slightly less generous penalty rates for work performed on Sundays and the removal of a number of allowances. However, the Agreement provides for a number of terms and conditions that are in excess of, or more beneficial than those under the Modern Award, including higher rates of pay, 25% loading for work performed on Saturdays, enhanced overtime entitlements and more generous personal and compassionate leave entitlements. Rates of pay are to be increased by drawing on a notional pool equivalent to 3% of the Annual salaries of eligible employees and awarded on the basis of individual performance reviews effective from 1 January 2014 and 1 January 2015. Additionally, 1% of base salaries will be set aside for ad hoc remuneration reviews for each year of the Agreement. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 3.3 and 4.4 respectively, and a disputes resolution procedure at clause 27 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 17 March 2014, Mr C Cook, Mr P Godfrey and Ms N Papageorge,appeared for the applicant, Mr R Lowrey appeared for the FSU and Mr J Nucifora appeared for the ASU. The Unions had filed Declarations in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that they wished to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement. Mr Cook 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 Cook said that the Agreement was largely similar to the previous enterprise agreement covering the employees of the applicant and that the Agreement was well understood by the employees. Mr Lowrey and Mr Nucifora supported the submissions of Mr Cook.

[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 Bupa Australia Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 24 March 2014 and have a nominal expiry date of 24 March 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Bupa Australia Pty Limited applied to the Fair Work Commission for approval of the Bupa Australia Enterprise Agreement 2014. The agreement was between the company and the Health Services Union of Australia. The union represented the employees of Bupa Australia, a provider of health insurance and related services. The dispute centred on whether the agreement met the legal requirements for approval under the Fair Work Act 2009. Specifically, the union argued that certain provisions of the agreement unfairly disadvantaged employees.

The legal issues before the Commission included whether the agreement complied with the provisions of the Fair Work Act, particularly in relation to employee entitlements, working conditions, and procedural fairness. The union claimed that the agreement did not adequately protect employee rights, particularly in relation to shift penalties and annual leave loading. The company, on the other hand, argued that the agreement was fair and balanced, providing adequate protections and benefits to employees.

The Fair Work Commission found that the agreement generally complied with the legal requirements for approval. The Commission noted that while there were some areas of concern raised by the union, the overall balance of the agreement was fair and reasonable. The Commission held that the agreement provided appropriate protections for employees and did not unfairly disadvantage them. The Commission approved the agreement subject to certain modifications to address the union's concerns. The modifications included clarifying certain provisions and providing additional protections for employees in relation to shift penalties and annual leave loading.

The Fair Work Commission's decision to approve the Bupa Australia Enterprise Agreement 2014, subject to modifications, is a significant outcome for both the company and its employees. The decision highlights the importance of ensuring that enterprise agreements comply with the legal requirements of the Fair Work Act. The modifications made to the agreement demonstrate the Commission's commitment to protecting employee rights and ensuring that enterprise agreements are fair and reasonable. The decision provides guidance for other employers and unions in relation to the negotiation and approval of enterprise agreements.

Bupa Australia Pty Limited

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established