ClearView Administration Services Pty Limited t/as ClearView Wealth Limited

[2014] FWCA 1703

FAIR WORK COMMISSION

DECISION

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

ClearView Administration Services Pty Limited t/as ClearView Wealth Limited
(AG2014/3855)

CLEARVIEW ENTERPRISE AGREEMENT 2014

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 13 MARCH 2014

Application for approval of the ClearView Enterprise Agreement 2014.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by ClearView Administration Services Pty Limited t/as ClearView Wealth Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the ClearView Enterprise Agreement 2014 (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (the ‘Union’) and four non-Union Employee Bargaining Representatives. The Agreement is to cover 175 employees who are engaged in the provision of financial advice and products. 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 5 December 2013, and voting for the Agreement’s approval took place between 12 and 14 February 2014. The time limits under s 181(2) of the Act are thereby satisfied. In an electronic secret ballot, 57 of the 68 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 February 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr R O’Leary, Human Resources (HR) Consultant 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 O’Learysaid that the Agreement did contain some terms and conditions that were less beneficial than those under the Modern Award, including the removal of some allowances and a slightly broader span of hours. However, the Agreement provides for a number of terms and conditions that are in excess of, or are more beneficial than those under the Modern Award, including substantially higher rates of pay, more generous severance entitlements, enhanced parental leave entitlements and an additional leave day. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 33 and 35 respectively, and a disputes resolution procedure at clause 34 provides for conciliation by the Commission.

[4] At a hearing of the application on 11 March 2014, Mr L Izzo, Solicitorappeared with Mr R O’Leary for the applicant and Ms A Clancy 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 Izzo 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. He explained that the Agreement guarantees rates of pay at least 15% higher than the relevant award rates for employees at levels 1-4 and 30% higher for employees at levels 5-6. Mr O’Leary explained that rates of pay are to be increased by drawing on a notional pool equivalent to 3% of the Annual salaries of eligible employees (or CPI, whichever is higher) and awarded on the basis of individual performance reviews effective from 1 July 2014, 2015 and 2016. This is subject to the applicant reaching its annual financial performance targets at the ‘On Target’ level. While individual employees are not guaranteed performance increases to their rates of pay, rates of pay will increase across the workforce by no less than 3%. Ms Clancy supported the submissions of Mr Izzo and Mr O’Leary.

[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 ClearView Enterprise Agreement 2014.Pursuant to s 54 of the Act, the Agreement shall operate from 18 March 2014 and have a nominal expiry date of 18 March 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of ClearView Administration Services Pty Limited t/as ClearView Wealth Limited, the Fair Work Commission was tasked with approving the ClearView Enterprise Agreement 2014. The applicant, ClearView Administration Services, sought approval for the agreement, which was intended to govern the employment terms and conditions for its employees. The application was made under the Fair Work Act 2009, which mandates that certain enterprise agreements must be approved by the Fair Work Commission before they can be enforced.

The legal issues central to the case involved the validity and fairness of the proposed agreement. Specifically, the Commission had to determine whether the agreement complied with the requirements of the Fair Work Act and whether it met the "better off overall test" (BOOT), which mandates that employees should be no worse off financially under the new agreement. The Commission also needed to consider whether the agreement appropriately balanced the interests of both employers and employees, and whether it contained all the necessary provisions as stipulated by the Act.

The Fair Work Commission examined the provisions of the proposed agreement in detail, assessing whether it provided adequate protections and benefits to employees. The Commission took into account the submissions from both parties, along with relevant industry standards and benchmarks. After careful consideration, the Commission found that the agreement did indeed comply with the statutory requirements and met the BOOT. The agreement was deemed to be fair and balanced, providing appropriate protections and benefits to the employees while also accommodating the legitimate interests of the employer.

In light of its findings, the Fair Work Commission approved the ClearView Enterprise Agreement 2014, effective from the date of the decision. This approval allows the agreement to be enforced, ensuring that the terms and conditions set out within it are legally binding on both the employer and the employees. The decision underscores the importance of thorough compliance with the Fair Work Act and highlights the Commission's role in safeguarding the interests of both employers and employees in the industrial relations framework.

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