Fiserv Solutions of Australia Pty Limited

[2013] FWCA 8652

[2013] FWCA 8652

FAIR WORK COMMISSION

DECISION

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

Fiserv Solutions of Australia Pty Limited
(AG2013/11070)

FISERV ENTERPRISE AGREEMENT 2013 - 2016

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 8 NOVEMBER 2013

Application for approval of the Fiserv Enterprise Agreement 2013 - 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Fiserv Solutions of Australia 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 Fiserv Enterprise Agreement 2013 - 2016 (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (the ‘Union’). The Agreement is to cover 109 employees who are engaged in the provision of a range of technology services in the financial services industry. 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 22 April 2013, and voting for the Agreement’s approval took place on 14 and 15 October 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 88 of the 98 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 28 October 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms S Redenbach, HR Manager identified the Fiserv Award 2005 [AP839266] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Redenbach said that the Agreement does provide for some terms and conditions that are less beneficial than those under the reference instrument, including the removal of an entitlement for an employee who has been made redundant to leave during their notice period, the removal of a requirement for the employer to give two weeks’ notice to change start and finish times and a change in circumstances in which a meal allowance is payable. However, the Agreement provides for a number of terms and conditions that are in excess of, or are more beneficial than those under the reference instrument, including higher base rates of pay, two paid ten minute breaks per shift, more generous severance entitlements and uncapped paid sick leave subject to certain requirements. Rates of pay are to be increased by 2.25% on approval of the Agreement, 2.5% from 1 July 2015 and 2.5% on 1 July 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 5 and 37 respectively, and a disputes resolution procedure at clause 18 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 1 November 2013, Ms M Hurley-Smith, Solicitor appeared with Ms S Redenbach 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. Ms Hurley-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. She explained that the employees were currently covered by the Fiserv Enterprise Agreement 2010-2013 [AE879970], which expired on 12 August 2013. Ms Clancy supported the submissions of Ms Hurley-Smith.

[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 Fiserv Enterprise Agreement 2013 - 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 8 November 2013 and have a nominal expiry date of 8 November 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, AE405154  PR544107>