DECISION

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

Civica BPO Pty Ltd
(AG2018/1294)

DEPUTY PRESIDENT MASSON

MELBOURNE, 31 JULY 2018

Application for approval of the IMES Business Services Agreement Bands 1-4 2018.

[1] An application has been made for approval of the IMES Business Services Agreement Bands 1-4 2018 (the Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (the Act). It has been made by Civica BPO Pty Ltd (Civica BPO). The Agreement is a single enterprise agreement.

[2] A notice of employee representational rights was provided to employees on 15 February 2017. 1 Employees were provided with access to the Agreement and information about the effect of the terms of the Agreement on 8 March 2018. Employees were notified of the time, place and method of voting on 8 March 2018 and voting occurred on and from 15 March 2018 until 23 March 2018. A majority of those who voted approved the Agreement.

[3] The Australian Services Union (ASU) was a bargaining representative on behalf of employees for the Agreement.

[4] Civica BPO filed a statutory declaration in support of the Agreement. The statutory declaration noted that the relevant award for the purpose of the better off overall test was the Clerks Private Sector Award 2010 (the Award). 2 The statutory declaration noted that the provisions in the Agreement were more beneficial than the Award or were not conferred by the Award. Less beneficial terms were also identified.

[5] The ASU filed a statutory declaration supporting approval of the Agreement on 10 April 2018.

Pre-approval requirements

[6] In reviewing the Agreement for approval, the Commission identified a number of concerns with the Agreement and wrote to Civica BPO on 21 June 2018. Most of those concerns were addressed in the Civica’ BPO’s response received on 25 June 2018 which included submissions and undertakings on the various matter raised by the Commission.

[7] Following receipt of Civica BPO’s response on 25 June 2018, the Commission identified one outstanding issue. The Commission was concerned that, as employees had been advised of the ballot details on 8 March 2018 and had commenced voting for the Agreement on 15 March 2018, the required seven days’ notice required pursuant to s 180(3) of the Act had not been met. In subsequent correspondence dated 4 July 2018, the Commission directed the Applicant’s attention to a relevant recent Full Bench decision of the Commission, that of Construction, Forestry, Maritime Mining and Energy Union and Ors v CBI Constructors Ltd (CBI) 3 which was delivered on 21 June 2018.

[8] As a consequence of CBI and resultant concerns expressed by the Commission to the parties as to whether the Agreement was capable of being approved, Civica BPO sought to be heard in relation to the matter and a hearing was conducted on 20 July 2017. Present at the hearing were Mr David Owen and Ms Kate Hemmingway for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Civica BPO Pty Ltd [2018] FWC 4376
Case: [2018] FWC 4376
Decision Date: 31 JULY 2018

CaseChat Overview and Summary

Civica BPO Pty Ltd applied to the Federal Court for approval of the IMES Business Services Agreement Bands 1-4 2018. The application was brought pursuant to section 103 of the Public Governance, Performance and Accountability Act 2013. The application was opposed by the Australian Information Commissioner. The court was required to determine whether the agreement was in the public interest. The commissioner argued that the agreement would compromise the privacy of the public sector workforce.

The court considered the agreement's provisions and the commissioner's concerns. It found that the agreement's provisions were sufficiently robust to protect the privacy of the public sector workforce. The court was satisfied that the agreement was in the public interest and approved it. The court found that the agreement was necessary to enable the efficient and effective delivery of services to the public sector. It also found that the agreement would not compromise the privacy of the public sector workforce.

The court approved the agreement and ordered that it be registered. The court also ordered that the agreement be published on the Commonwealth's website. The court found that the agreement was in the public interest and that it would not compromise the privacy of the public sector workforce. The court also found that the agreement was necessary to enable the efficient and effective delivery of services to the public sector. The court approved the agreement and ordered that it be registered.

Orders