BWA Group Services Pty Ltd

[2014] FWCA 6149

FAIR WORK COMMISSION

DECISION

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

BWA Group Services Pty Ltd
(AG2014/8757)

BWA GROUP SERVICES PTY LTD (BANKWEST) ENTERPRISE AGREEMENT 2014

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 SEPTEMBER 2014

Application for approval of the BWA Group Services Pty Ltd (Bankwest) Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by BWA Group Services Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the BWA Group Services Pty Ltd (Bankwest) Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (the ‘Union’) and is to cover 2552 employees who are employed in Level 1 and 2 roles working in the Bankwest Division of the Commonwealth Bank of Australia, Level 3 roles who have not signed a management contract or who are working as Assistant Store Managers in Bankwest Retail Stores outside of Western Australia. 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 6 May 2013, and voting for the Agreement’s approval took place between 6 and 14 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a ballot 1,553 of the 1,644 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 25 August 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J Dasey, Executive Manager Employee Relations identified the Banking, Finance and Insurance Award 2010 [MA000019] and the BankWest/TrustWest Award 1998 [AP769457]as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). In a well-prepared and comprehensive written submission, Mr Daseysaid that the Agreement provides for some terms and conditions that are less beneficial than the reference instruments, including lower penalty rates for Level 1 and 2 employees for work performed on Saturdays and Sundays, the removal of some non-applicable allowances and the removal of penalty rates for work performed by Assistant Store Managers on Public Holidays. However, the Agreement provides for a number of terms and conditions which are more beneficial than the reference instruments, including higher base rates of pay, additional paid personal and parental leave, enhanced severance entitlements and extended notices of termination. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 35 and 36 respectively, and a disputes resolution procedure at clause 8 provides for conciliation and, for certain matters, arbitration by the Commission. The Commission is excluded from making a decision in relation to making a role or position redundant or any individual’s performance rating.

[4] At a hearing of the application on 4 September 2014, Mr J Dasie appeared for the applicant and Mr D Peddie and Mrs Gaye Stirling for the Union. 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 Dasie 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 Dasie explained that the rates of pay are to be increased by 3.25% on approval, backdated to 1 April 2014 and a further increase of 3.0% on 1 April 2015. Mr Peddie and Mrs Stirling supported the submissions of the applicant and confirmed that the Union was happy with 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 BWA Group Services Pty Ltd (Bankwest) Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 11 September 2014 and have a nominal expiry date of 31 December 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application for the approval of the BWA Group Services Pty Ltd (Bankwest) Enterprise Agreement 2014. The dispute centred around the provisions within the agreement and whether they complied with the requirements set forth by the Fair Work Act 2009. The Commission was tasked with ensuring that the agreement was fairly negotiated and did not contain any unfair terms that would adversely affect the employees.

The primary legal issues the Commission had to decide were whether the agreement had been genuinely negotiated and whether the terms within it were fair and reasonable. Additionally, the Commission needed to determine if there were any terms that might be considered unfair, which would require the agreement to be modified or rejected. The argument regarding genuine negotiation focused on whether both parties had entered into the agreement with a genuine intention to be bound and had negotiated in good faith.

The Commission found that the agreement had been genuinely negotiated and that the terms were fair and reasonable. It was determined that both parties had demonstrated a genuine intention to be bound by the agreement and had negotiated in good faith. The Commission also found that none of the terms were unfair. The Commission concluded that the agreement met all necessary statutory requirements for approval.

Consequently, the Fair Work Commission approved the BWA Group Services Pty Ltd (Bankwest) Enterprise Agreement 2014, finding it to be compliant with the Fair Work Act 2009. The decision was made based on the evidence presented that demonstrated genuine negotiation and the fairness of the terms within the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established