Decipha Pty Limited

[2013] FWCA 8068

[2013] FWCA 8068

FAIR WORK COMMISSION

DECISION

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

Decipha Pty Limited
(AG2013/10756)

DECIPHA PTY LIMITED ENTERPRISE AGREEMENT 2013 - 2015

Postal services
DEPUTY PRESIDENT SAMS	SYDNEY, 15 OCTOBER 2013

Application for approval of the Decipha Pty Limited Enterprise Agreement 2013 - 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Decipha Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Decipha Pty Limited Enterprise Agreement 2013 - 2015 (the ‘Agreement’). The Agreement was negotiated with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ‘Union’) and an Employee Bargaining Representative, Mr B Vu. The Agreement is to cover 355 operations employees who are engaged across the country in the applicant’s business dealing with inbound information management for a variety of clients. 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 1 March 2013 and voting for the Agreement’s approval took place between 4 and 25 September 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 290 of the 301 employees who voted agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr J Morris, National Human Resources Manager, identified the Emailroom Business Award 2002 [AP822850] (an Enterprise Award which will cease to apply from 31 December 2013) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Morris said that the Agreement does contain some terms and conditions that are less beneficial than, those under the reference instrument, including a minimum engagement of three hours for casual and new part time employees, the removal of a job search entitlement in circumstances of termination not including redundancy and the ability of the applicant to direct employees to take Annual Leave in certain circumstances. However, the Agreement provides for a number of terms and conditions that are more beneficial than or in excess of those under the Award, including higher rates of pay, a provision that part time employees be rostered for a maximum of ten hours per day, an entitlement for certain Union delegates and employee representatives for paid leave to attend dispute resolution training, enhanced termination and redundancy entitlements and a number of allowances. It was also said that another benefit was the ability to cash out annual leave in certain circumstances. The Agreement provides for rates of pay to be increased by 3% from the operative date of the Agreement and by 3% on 1 July 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 10 and 11 respectively, and a disputes resolution procedure at clause 13 provides for conciliation by the Commission, mediation by independent third parties and arbitration by the Commission, should the independent mediator indicate it is appropriate.

[4] At a hearing of the application on 15 October 2013, Mr J Morris,appeared for the applicant, Ms C Gee for the Union and Mr B Vu in his capacity as Employee Bargaining representative. 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 Morris 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 3% increase to rates of pay due to employees once the Agreement was approved has already been paid from 23 September 2013. Ms Gee and Mr Vu supported the submissions of Mr Morris.

[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 Decipha Pty Limited Enterprise Agreement 2013 - 2015. Pursuant to s 54 of the Act, the Agreement shall operate from 22 October 2013 and have a nominal expiry date of 22 October 2015.

DEPUTY PRESIDENT

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