Commonwealth of Australia represented by the Department of Finance

[2019] FWCA 659

[2019] FWCA 659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Commonwealth of Australia represented by the Department of Finance
(AG2018/6776)

DEPARTMENT OF FINANCE ENTERPRISE AGREEMENT 2019

Commonwealth employment
COMMISSIONER PLATT	ADELAIDE, 14 FEBRUARY 2019

Application for approval of the Department of Finance Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Department of Finance Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Commonwealth of Australia represented by the Department of Finance. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 11 January 2019.

[3] On 17 January 2019, I conducted a telephone conference attended by the Applicant, the CPSU and Mr Bentley (an employee bargaining representative) to seek clarification about aspects of the Agreement, as well as raise concerns on matters which may impact on the approval of the Agreement.

[4] The CPSU did not raise any additional issues with respect to the approval of the Agreement. Mr Bentley raised a number of issues and was invited to provide written submissions.

[5] Mr Bentley provided a number of written submissions opposing the approval of the Agreement on the basis that he did not agree with the terms of the proposed Agreement, that some provisions concerning COMCAR drivers did not meet the better off overall test (BOOT), the content of the proposed Agreement and took issue with the proposed undertaking as it related to casual COMCAR drivers.

[6] The Union provided a response to the Applicant’s submissions and undertaking and usefully provided a summary of the history of the inclusion of COMCAR drivers into the proposed Agreement which assisted my understanding of some of Mr Bentley’s objections to the Agreement.

[7] A further teleconference was conducted on 8 February 2019.

[8] The Applicant has submitted an undertaking in the required form dated 8 February 2019. The undertaking deals with the following topics:

•  Clause 2.13 of the Agreement (Recovery of Debts) will operate subject to s.324 of the Act.

•  For the purpose of clause 17.1, full-time employees will accrue four weeks of paid annual leave for each year of service in accordance with the National Employment Standards.

•  The Applicant undertakes that when a COMCAR driver is requested to work on a Sunday or a public holiday, or is not provided with minimum notice of cancellation of a shift on a Sunday or public holiday in accordance with clause 33.3 of the Agreement, the employee will be paid the higher of the following, as varied from time to time:

a. four hours’ pay at the rate of APS 1 under table A.8 of the Australian Public Services Enterprise Award 2015 (the Award); or

b. the actual hours worked by the driver on the relevant day at the rate applicable under clause 33.1(d) and Table 5 of Attachment A of the Agreement.

[9] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. Mr Bentley objected to the undertaking.

[10] Mr Bentley (supported by the CPSU) contends that the reduction of the minimum engagement period for casual COMCAR drivers will offend the BOOT. Clause F2.3 of the Award provides for minimum engagement of four hours at the APS1 level. The Agreement reduces this minimum period to three hours, however the hourly rate of pay (for Monday to Friday work between 6:30am and 6:00pm) is such that COMCAR drivers will earn more in three hours then what they would have in four hours. With respect to weekend and public holiday work, the Applicant has agreed by undertaking to apply a 4 hour minimum engagement period. With this undertaking I accept the Applicants’ submission that casual COMCAR driver provisions pass the BOOT.

[11] The remainder of Mr Bentley’s submissions raised a number of other issues including an allegation that the Applicant did not bargain in good faith, comparative wage justice concerns, and concerns regarding the removal of pay point advancement.

[12] This was the first time any issue concerning a lack of good faith bargaining has been raised in this matter. The material provided is not sufficient to reach the conclusion that the requirements s.187(2) of the Act has not been satisfied.

[13] The other matters raised by Mr Bentley appear to relate to bargaining outcomes and are not matters addressed in the approval requirements under the Act.

[14] The “CPSU, the Community and Public Sector Union”, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[15] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[16] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 21 February 2022.

COMMISSIONER

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