GMHBA Limited

[2013] FWCA 7690

[2013] FWCA 7690

FAIR WORK COMMISSION

DECISION

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

GMHBA Limited
(AG2013/2816)

GMHBA LIMITED ENTERPRISE AGREEMENT 2013

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 OCTOBER 2013

Application for approval of the GMHBA Limited Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by GMHBA Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the GMHBA Limited Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Services Union, Victoria Private Sector Branch (the ‘Union’). The Agreement is to cover 120 employees who are engaged in customer service and administrative support for a private health fund. 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 4 March 2013, and voting for the Agreement’s approval took place on 29 August 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a vote, 96 of the 102 of the employees who cast a vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 11 September 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Tim Boyd, Executive Manager Human Resources, identified the Banking, Finance & Insurance Award 2010 [MA000019] (the ‘Award’) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Boydsaid the agreement provides for the following terms that are more beneficial than the relevant reference instruments:

● Redundancy pay of 3 weeks per year of service to a maximum of 40 weeks (more beneficial than the National Employment Standards);
● Provision of appropriate outplacement and financial service as appropriate and agreed between the employee and the Company (not available under the Modern Award);
● 25% loading for the entire shift if an employee finishes their shift between 6:00 and 8:00pm Monday to Friday (c.f. 20% loading under the Modern Award);
● 25% loading for all hours worked on Saturday (c.f. Modern Award standard which provides for overtime only for hours worked outside of 8:00am - 12:00pm);
● Overtime is paid at time and a half for the first two hours and double time thereafter (c.f. time and a half for the first three hours and double time thereafter under the Modern Award);
● 4 days compassionate leave (c.f. 2 days compassionate leave under the National Employment Standards);
● 1 day compassion leave for the death of an uncle, aunt, niece or nephew (who are persons outside the definition of ‘immediate family’ under s.12 of the Fair Work Act 2009);
● 5 days community service leave per calendar year (c.f. no such entitlement under the Modern Award);
● No cap on the number of days of jury service leave (c.f. a cap of 10 days under the National Employment Standards);
● Substantially higher wage rates (average of 28.2%) compared with the equivalent classifications under the Modern Award;
● Wage increases of 3.5% from 1 July each year during the life of the Agreement;
● Generally better allowances as compared with the Modern Award; and
● Provision of the following benefits that are not available under the Modern Award:

• Cashing out annual leave;



• Paid parental leave;



• Natural disaster leave of two days;



• Family violence leave;



• Career break;



• Salary sacrifice options;



• Solo day allowances;



• Uniform / Laundry allowance;

[4] Mr Boyd also noted the following less beneficial terms:

● Longer span of ordinary hours of work compared with the Modern Award;
● Overtime on a Saturday is at time and a half for the first two hours and double time thereafter (c.f. with double time under the Modern Award);
● Meal allowance is paid $15.01 after an employee works one hour overtime (c.f. $15.02 after an employee works one and a half hours overtime beyond 6:00pm and a further allowance of $12.35 is payable if an employee works five and a half hours overtime under the Modern Award); and

No provision of vehicle allowance compared with such a provision under the Modern Award, however Mr Boyd states that no employee is effected by the lack of such a provision.

[5] On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 14 and 11 respectively, and a disputes resolution procedure at clause 6 provides for conciliation and arbitration by the Commission.

[6] At a hearing of the application on 1 October 2013, Mr Chris Hartigan, Solicitor,appeared for the applicant. There was no appearance from 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 Hartigan 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. Mr Hartigan did point out two important issues. First, he informed the Commission that the Agreement was drafted in early 2013 and that the law in relation to paid parental leave had now changed. Mr Hartigan provided an undertaking that to the extent that the there was any inconsistency between the Agreement and the current parental leave legislation, that the applicant will comply with the National Employment Standard. Pursuant to s 191(1) of the Act, the undertaking is taken to be a term of the Agreement. A copy of this undertaking is attached to the Agreement and marked as ‘Annexure A’. Second, Mr Hartigan pointed out that question 2.12 on Form F17 was incorrectly answered by Mr Boyd as “Yes”. He said that there is no right of entry for officials or employees of employee organisations to enter the employer’s premises and that the answer to question 2.12 on Form F17 should be “No”.

[7] Having heard the applicant’s 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, 188, 190 and 191, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the GMHBA Limited Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 8 October 2013 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

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