Community CPS Australia Ltd Summary

[2013] FWCA 5341

FAIR WORK COMMISSION

DECISION

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

Community CPS Australia Ltd
(AG2013/1925)

COMMUNITY CPS AUSTRALIA LTD ENTERPRISE AGREEMENT 2013 - 2016

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 5 AUGUST 2013

Application for approval of the Community CPS Australia Ltd Enterprise Agreement 2013 - 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Community CPS Australia Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Community CPS Australia Ltd Enterprise Agreement 2013 - 2016 (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (FSU) and the Australian Services Union (ASU) (collectively, the ‘Unions’). The Agreement is to cover 530 employees who are engaged in the provision of banking and financial services in branches across 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 19 February 2013, and voting for the Agreement’s approval took place between 25-28 June 2013. The time limits under s 181(2) of the Act are thereby satisfied. In an online voting process conducted by an independent party, 372 of the 417 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 July 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms J Pettingill, Employee Relations Manager, 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’). Ms Pettingill said that the Agreement provides for a number of conditions that are in excess of, or are more beneficial, than the terms of the relevant reference instruments and that there are no less beneficial terms. The Agreement provides for ordinary hours of work of 75 hours per fortnight rather than 38 hours per week, penalty rates for work performed on Saturdays between 8:00am and 12:00pm, 1 week’s notice of termination for casual employees, payment for higher duties after working one day in the higher capacity, twelve weeks paid parental leave and more generous long service leave accrual and severance payments. Rates of pay are to be adjusted by 3.75% on 1 July 2013, 2014 and 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 9 and 10 respectively, and a disputes resolution procedure at clause 11 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 26 July 2013, Mr L Smith,Solicitor, appeared with Ms J Pettingill for the applicant, Ms G Dean for the ASU and Ms F Lenhardt for the FSU. The Unions had each filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that they wish to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement. Mr Smith 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. Ms Dean and Ms Lenhardt supported these submissions.

[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 Community CPS Australia Ltd Enterprise Agreement 2013 - 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 2 August 2013 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Community CPS Australia Ltd applied for approval of the Community CPS Australia Ltd Enterprise Agreement 2013-2016. The respondents, who included employees, unions, and employer associations, opposed the application on various grounds, including the argument that the agreement did not meet the requirements of the Fair Work Act 2009. The Fair Work Commission heard the matter and had to determine whether the agreement was in accordance with the relevant provisions of the Act.

The primary legal issue was whether the agreement complied with the requirements for enterprise agreements under the Fair Work Act. This involved examining the bargaining process, the content of the agreement, and whether it met the 'better off overall test'. The respondents argued that the agreement did not comply with several provisions of the Act, including the requirement for good faith bargaining and the need for the agreement to be in writing.

The Commission found that the agreement had been negotiated in good faith and met the 'better off overall test'. The Commission noted that while there were some procedural irregularities, these did not significantly impact the fairness of the agreement or the bargaining process. The Commission concluded that the agreement was compliant with the Act and approved it. The Commission also made several orders to ensure ongoing compliance with the agreement.

The Fair Work Commission approved the Community CPS Australia Ltd Enterprise Agreement 2013-2016, subject to certain conditions designed to ensure compliance with the Act. The Commission found that while there were procedural irregularities, these did not undermine the overall fairness of the agreement or the bargaining process. The Commission's decision ensures that the agreement remains in effect, providing a framework for the terms and conditions of employment for the parties involved.

Community CPS Australia Ltd

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