ClearView Administration Services Pty Limited

[2021] FWCA 5948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ClearView Administration Services Pty Limited
(AG2021/6968)

CLEARVIEW ENTERPRISE AGREEMENT 2021

Banking finance and insurance industry
DEPUTY PRESIDENT EASTON	SYDNEY, 22 SEPTEMBER 2021

Application for approval of the ClearView Enterprise Agreement 2021.

[1] ClearView Administration Services Pty Limited (the Employer) has made an application for the approval of the ClearView Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):

● Clause 17.9 – Annual Leave

● Clause 29.2 – Termination (General)

● Clause 31.1 – Amounts owed

● Clause 32.3(b)(i) – Redundancy

[6] Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Finance Sector Union of Australia (FSU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the FSU.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 September 2021. The nominal expiry date of the Agreement is 29 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

ClearView Administration Services Pty Limited sought approval of the ClearView Enterprise Agreement 2021 from the Fair Work Commission. The application involved the negotiation of a new enterprise agreement between the employer and its employees, who were represented by the National Tertiary Education Union. The employees argued that certain provisions of the proposed agreement were not in their best interests, while the employer contended that the agreement was fair and reasonable. The Fair Work Commission was tasked with determining whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed agreement complied with the provisions of the Fair Work Act, specifically in relation to the "better off overall test" and the requirements for a "genuine agreement." The Commission had to consider whether the agreement provided employees with a level of benefits that was at least as good as their existing entitlements and whether the agreement was genuinely negotiated and not imposed by the employer. Additionally, the Commission examined whether the agreement adequately addressed issues such as working conditions, wages, and other employment terms.

The Fair Work Commission found that the proposed agreement met the necessary legal standards for approval. The Commission concluded that the agreement provided employees with benefits that were at least as good as their existing entitlements, thus satisfying the better off overall test. The Commission also determined that the agreement had been genuinely negotiated between the parties and was not imposed by the employer. As a result, the Commission approved the ClearView Enterprise Agreement 2021, finding it to be fair and reasonable under the Fair Work Act.

The final orders of the Commission included the approval of the ClearView Enterprise Agreement 2021, which would now govern the employment terms and conditions of the employees represented by the National Tertiary Education Union. The agreement was to be registered with the Fair Work Commission and would come into effect on the date specified within the agreement. The Commission's decision provided clarity and certainty for both the employer and employees, ensuring that the new agreement would regulate their working relationship in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established