Hobsons Bay Community Financial Services Limited Summary

[2014] FWCA 6784

FAIR WORK COMMISSION

DECISION

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

Hobsons Bay Community Financial Services Limited
(AG2014/7376)

HOBSONS BAY COMMUNITY FINANCIAL SERVICES LIMITED ENTERPRISE AGREMEENT

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 OCTOBER 2014

Application for approval of the Hobsons Bay Community Financial Services Limited Enterprise Agreement.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Hobsons Bay Community Financial Services Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Hobsons Bay Community Financial Services Limited Enterprise Agreement (the ‘Agreement’). The Agreement was negotiated with the Finance Sector Union of Australia (the ‘Union’) and two non-Union Employee Bargaining Representatives. It is to cover 11 employees who are employed in clerical roles, other than those employed at a managerial level, at the applicant’s community banking franchises in Altona, Laverton and Point Cook, Victoria. 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 January 2014, and voting for the Agreement’s approval took place on 20 August 2014. The time limits under s 181(2) of the Act are thereby satisfied. In a voted conducted by email, all 6 of the employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 3 September 2014, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr Michael Boyd, Director, 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’). Mr Boydsaid 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 higher rates of pay, more generous junior rates of pay, an entitlement to a higher duties allowance after performing the duties of the higher position for three days and enhanced severance entitlements. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 12 and 11 respectively, and a disputes resolution procedure at clause 39 provides for mediation and arbitration by an independent third party.

[4] At a hearing of the application on 25 September 2014, Mr D Villani appeared for the applicant and Mr R Lowrey 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. Mr Villani 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 Agreement was similar to a number of enterprise agreements recently approved by the Commission. He also noted that the minimum salaries for Grade 3 and 4 employees were substantially higher than those under the Award. Mr Lowrey supported the submissions of Mr Villani.

[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 Hobsons Bay Community Financial Services Limited Agreement.Pursuant to s 54 of the Act, the Agreement shall operate from 2 October 2014 and have a nominal expiry date of 30 April 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Hobsons Bay Community Financial Services Limited, sought approval for their enterprise agreement from the Fair Work Commission. The application was made under section 233 of the Fair Work Act 2009. The agreement in question was to be applied to various employees of the organisation, who were engaged in financial services and related activities. The dispute arose from the terms of the proposed agreement, which the applicant sought to have approved as a registered agreement, binding both the employer and the employees covered by the agreement.

The primary legal issue before the court was whether the provisions of the proposed agreement were consistent with the requirements of the Fair Work Act. The applicant argued that the agreement met all necessary criteria for approval, including that it provided for a safety net of minimum wages and conditions, and did not provide for terms and conditions that were less favourable than the applicable awards or the national employment standards. The court was also required to consider whether the agreement had been made in good faith and whether the process by which it was made complied with the relevant provisions of the Act.

In delivering the decision, the commission found that the application met the requirements for approval as set out in the Fair Work Act. The commission confirmed that the agreement provided for minimum terms and conditions that were not less favourable than the relevant awards and national employment standards. Furthermore, the commission was satisfied that the agreement was made in good faith and that the process by which it was made complied with the Act. As such, the commission approved the application and registered the enterprise agreement.

The final orders of the commission were that the Hobsons Bay Community Financial Services Limited Enterprise Agreement be approved and registered as a registered agreement under section 233 of the Fair Work Act 2009. This decision provides clarity and legal certainty for the parties involved and ensures that the agreement will operate as intended, subject to the provisions of the Act.

Hobsons Bay Community Financial Services Limited

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Background to the litigation

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Legal Principle Established